David Thompson, the acting chief executive of the Public Guardianship Office, explained the implications of the Mental Capacity Act from the point of view of the Public Guardianship Office at the recent Solicitors for the Elderly National Conference held in London on Friday 10 June. The editor, David Coldrick, reports.
After outlining the evolution of the Mental Capacity Act, David Thompson considered the following points. Practitioners dealing with elderly or vulnerable people, will be particularly interested.Functional capacity
The Mental Capacity Act contains a presumption of capacity. The test of capacity is ‘functional’. Presently, a single medical certificate completed by an appropriate GP renders a person as one without sufficient legal mental capacity to administer their financial affairs. Given a functional test, it may be that a person has sufficient mental capacity to deal with their pension, for example, but not sufficient capacity to deal with the oversight and management of their portfolio and property.
Thompson suggested that this new test might prove difficult in practice because it might be hard to ensure that a holistic oversight of a person’s finances could be achieved effectively if that person was dealing with some of their own resources while the other aspect was the responsibility of the appointee of the court. There is a tension between protecting the vulnerable individual concerned and empowering them to do as much for themselves as possible.
The Act confirms that an individual has the right to make eccentric or unwise decisions. Thompson noted that we all make unwise decisions at some point and observed that anybody who took out an equitable pension at some point in the past might be feeling they made one.Participation
The principles of the Act also include a need for the clear participation of the vulnerable person as far as possible. It was also clear that the Act was geared towards meeting the perceived ‘best interests’ of the vulnerable person and that decisions should be as unrestrictive as possible in terms of their rights and freedoms. The ability to make decisions should only be restricted where they were effectively absolutely unable to make them themselves.Best interests
The issue of best interest was considered. It could prove problematic. The past and present feelings and wishes of the vulnerable person, together with their beliefs and value system will be relevant among other factors. Consultation will be required with carers; people specified by the vulnerable person in any lasting power of attorney that is in force; their donees under a lasting power of attorney; and deputies appointed under the new form of receivership equivalent. That is a lot to consider.Codes of practice
The whole process will involve the use of certain codes of practice that the Lord Chancellor will be able to change from time to time. It is unlikely that they will be an easy read, at least in their full version, and there was some concern expressed that short-form versions should be distributed as soon as relevant for public consumption. Awareness of the process and the codes of practice are considered to be extremely important. This is naturally where members of Solicitors for the Elderly and other professionals will have a greater awareness and should, in turn, consider disseminating relevant information at the right time.
The codes of practice are likely to cover the assessment of capacity, what amounts to best interests and the more controversial areas, such as acts in connection with care or treatment, as well as the use, and avoidance of abuse, of lasting powers of attorney, the court and deputies (who replace receivers) and advance decisions to refuse treatment. Thompson noted that there was some discussion going on at the moment in connection with the British Bankers Association in the context of the use of enduring powers of attorney and this was likely to be repeated in the context of lasting powers of attorney and deputies under the new regime.Deputies
As mentioned above, court-appointed deputies will replace receivers. Deputyships will cover finance and/or property/health and welfare issues. The author of this article suggests that many solicitors and indeed private individuals may be distinctly unwilling to take on board the health and welfare issues.
Because of the comprehensive change towards a functional task for capacity that is decision specific, single orders or decisions of the court would be preferred to full deputyship. Full deputyship only appears to be likely if a person is totally mentally incapable by any standard. Thompson suggested that there would be a risk of ‘ping pong’ between the practitioner and the court and the balance between keeping the vulnerable person involved and empowered to deal with their own decision making where possible would need to be carefully balanced by the court with the need to protect their interests.
Naturally, the deputies appointed by the Court of Protection will need to pay regard to the codes referred to and will particularly need to be aware of the impact of the functional test.Lasting powers of attorney
Thompson suggested that he expected there to be perhaps 150,000 registrations of lasting powers of attorney every year, which is a substantial increase on the number of enduring powers of attorney that are being registered. It is suspected that many of them are being operated in respect of incapable donors without being registered, which is unlawful, but it is something that is slipping through the net at present. Thompson made clear that his view was that this was a serious loophole in the 1985 Enduring Powers of Attorney legislation.
There are distinctive differences between enduring powers of attorney and the new lasting powers of attorney, and there will be a dual system for some decades to come. Enduring powers of attorney must be registered at the onset of incapacity and therefore it is anticipated that the dual system may apply for perhaps 35, 40 or even more years because many relatively young people have made perfectly valid appointments, which will continue as valid appointments under the new system.
They can be used before registration if the donor is mentally capable, which is often to the practical advantage of the donor of the power – this was made very clear by one of the questioners at the conference. Enduring powers of attorney only cover financial and property-related matters. They do not need to be independently witnessed and there is no need to ensure the donor really understands it, although a professional person will seek to do that for the purposes of the record. Enduring powers of attorney cannot specify who is to be notified at the time of registration. Sometimes, individuals on the list have little or nothing to do with the donor and it can, put bluntly, be embarrassing to all concerned.
Lasting powers of attorney will only be able to be used once registered, which removes the loophole referred to by Thompson. A lasting power of attorney can cover financial and/or health and welfare-related matters.
As mentioned above in the context of deputyships, it may be that many professional and lay appointees are going to be unwilling to take on board the full health and welfare aspects. They may well not feel confident or comfortable in doing that. The lasting power of attorney must be witnessed by someone who can attest that the donor appears to have understood the document and they are not signing it under undue pressure. It is unclear how this will work in practice yet. The author of this article assumes that solicitors will be able to act as witnesses in the normal way, but the posting out of an enduring power of attorney to a donor to sign may become a thing of the past so far as lasting powers of attorney are concerned, unless perhaps the client wishes to make a trip to their local GP. Lasting powers of attorney should get over some of the embarrassment factor relating to who should be notified at the time of registration. A lasting power of attorney can specify who is to be notified of registration. There is no longer a statutory list of relations who will need to be notified.
The type of health and welfare decisions that may prove unpopular with appointees under lasting powers of attorney, cover such areas as where the vulnerable person might live, whether or not to accept treatment on behalf of the vulnerable person and decisions as to who the vulnerable person may or may not have contact with. The ‘all new’ Court of Protection will, it is submitted, consider itself to be a ‘court of last resort’ in this kind of decision making. Any professional person with involvement in work relating to older or other vulnerable people might suspect that it will naturally have to have an increased involvement.Transitional arrangements
There will be certain transitional arrangements. Enduring powers of attorney will not be able to be executed after the Act comes into force in April 2007. They will be able to be used after the Act comes into force, however, so long as executed before then. They will also be able to be registered after the Act comes into force. As for receivers, they will continue to be treated as such after the Act comes into effect, unless or until the court varies the terms of the original appointment to probably reduce the amount of interventionism in the relevant person’s financial affairs.The new PGO
There will be a new public guardian.
The Public Guardianship Office (PGO) becomes the Office of the Public Guardian (OPG), which is perhaps somewhat reminiscent in readers’ minds to British Leyland becoming BL. Perhaps one day the OPG might become the GPO? Joking aside, the new statutory office (and, of course, the Public Guardianship Office is no such thing at the moment) will have specific functions that include the following:
So, the Court of Protection will make a decision on who to appoint as a deputy. The Office of the Public Guardian will supervise them in the client’s best interests on how to effect that order. They are two separate and distinct organisations and there is clearly therefore some scope for mass confusion. This was admitted by Thompson. Discussions are taking place between the Public Guardianship Office and the judiciary to make sure that practitioners find there is a simple gateway to the machinery and then the court and the Office of the Public Guardian will make a decision as to who the matter should be processed by. The aim is to reduce the bureaucratic delay.The new Court of Protection
The role of the new Court of Protection would be to operate as a specialist Court of Record, with added jurisdiction extending to health and welfare matters. It will inherit certain High Court functions. This will mean that it will probably be possible to apply to it for declarations of capacity as opposed to simply declarations of incapacity. This could be useful in situations where there are family troubles and it is desirable for the practitioner to arrange a claim of incapacity to be ‘headed off at the pass’. It is anticipated that there may be innumerable such applications. The new Court of Protection will make decisions based on the functional capacity test and will work with the Office of the Public Guardian through various rules and regulations. The new Court of Protection will be very much part of the High Court and will be able to create precedents. It has not been able to do that before. The aim is for there to be regional units of the Court of Protection (and a Central Registry) headed by Court of Protection Judges at those centres. It is difficult, at this stage, to judge the volume of work and the number of centres that will be involved. Thompson hoped that a flexible service, providing a better match between regional demands, and the speciality of being a Court of Protection judge would be possible.Case-management plans
In a more general sense, it appears likely that the Scottish idea of a ‘management plan’ is to be adopted. That will involve looking at a vulnerable person’s needs and working out a game plan for them/their finances over a 12-18 month period and then monitoring progress by way of the original game plan operating as a yard stick. It is also anticipated that the Court of Protection and Office of the Public Guardian will link in rather more thoroughly with other agencies involved in health and welfare. This is to avoid replacement of all dispute-related procedures with a new super-system, because it is important to recognise the input of the relevant agencies and the ways in which they all need to operate in practice.
Thompson noted that the recent history of the Public Guardianship Office and, in particular, its move to Archway Tower had been an “unmitigated disaster”. He said that they were dead set against something like that ever happening again. Readers will find they agree with that, even if they are not keen on the Act itself!
David Coldrick is partner in charge of the Sheffield office of Wrigleys Solicitors. He can be contacted at email@example.com
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