Useful terms for a Deputy
As a person’s illness progresses there may come a time when they can no longer make certain decisions for themselves. In this situation someone else- perhaps you- can make certain decisions for them, by becoming a Deputy.
If a Lasting Power of Attorney has not been arranged before the person loses capacity, then someone else can take on this role by becoming a Deputy appointed by the Court of Protection.
With this legally appointed role comes a lot of useful terms that you may need to know. Here are just a few of them;
This is a statement of instructions that would include detail of what medical treatment a person wishes to refuse and is made before the person loses capacity. It is legally binding.
This is a person who is appointed by the Department for Work and Pensions (DWP), to help a person manage their benefits, if they lose capacity to manage them on their own. This is the best option where someone doesn’t have any other assets.
If you have arranged a Lasting Power of Attorney, you will have appointed an Attorney- a person over the age of 18, to make decisions on your behalf about your health and welfare and/or your property and financial affairs. If you do not have the capacity to appoint an Attorney, a Deputy will need to be appointed by the Court of Protection.
If a person is disabled due to a physical or mental condition, they may be entitled to certain benefits. These include Employment and Support Allowance, Universal Credit or Personal Independence Payment. If person has received compensation following a personal injury claim, this compensation can be disregarded for the purposes of calculating some of the benefit entitlement.
The Mental Capacity Act 2005 confirms that any decision made on behalf of someone needs to be in their best interests. This involves considering:
- Will the person regain capacity?
- Involving the person as much as possible;
- Considering other relevant people;
- Not making assumptions;
- A person’s past wishes;
- Taking the least restrictive option
‘Capacity’ is the ability to be able to make your own decisions
To ‘lack capacity’ is when you are unable to make a decision to due reasons such as brain damage, illness, learning disability or dementia. Capacity is decision specific so you could have capacity to make one decision but not another.
This is a form that needs to be completed before making an application to the Court of Protection to appoint a Deputy for someone. This form can be completed by a medical expert such as a GP, Consultant, Psychologist or Occupational Therapist as well as a Social Worker.
Continuing Healthcare funding (CHC)
This is package of care or funding provided by the NHS for people who have a primary care need. CHC funding is free and available for someone still at their home or in a care home. An assessment is carried out first to assess eligibility.
Court of Protection
The Court of Protection is the superior court in English law, which has jurisdiction over the property, financial affairs and wellbeing of people who lack mental capacity to make decisions for themselves.
Here, decisions are made and Deputies are appointed to act on your behalf if you are unable to make these types of decisions yourself.
Deprivation of Liberty Safeguards (DoLS)
Part of the Mental Capacity Act 2005, these safeguards exist to safeguard individuals when a deprivation of liberty exists. A deprivation of liberty is usually when someone has not freely chosen where they want to live or what type of care they receive (such as in a care home).
A person appointed by the Court of Protection to make decisions for you once you have lost capacity to make them for yourself. This usually involves decisions regarding property and financial affairs, but can also be in relation to a person’s health and welfare decisions.
This is a payment provided by the Local Authority if you are assessed as needing support. This may not cover the full cost of care and support but will help towards this.
The Local Authority will firstly need to carry out a needs assessment and then they will need to look at what finances you have.
Lasting Power of Attorney
This is a legal document specifying who you have appointed as an Attorney, to make decisions for you. You can only enter into a Lasting Power of Attorney when you still have capacity. This document can only be used once it has been registered at the Office of the Public Guardian.
A litigation friend is an appointed person to represent you in court if you lack capacity. This can be either a family member, friend or your solicitor. You can be appointed by the court, or you can apply to be someone’s litigation friend.
Mental Capacity Act 2005 (MCA)
The Mental Capacity Act (MCA) is designed to protect and empower vulnerable people aged 16 and over, who may lack the mental capacity to make their own decisions about certain things.
The MCAincludes 5 main principles:
- a person has capacity unless proven otherwise;
- provide support for a person to make their own decisions where possible;
- to make a decision in a person’s best interests
- an unwise or eccentric decision doesn’t mean a person lacks capacity
- Take the least restrictive route possible
Mental Capacity Act Code of Practice
The Mental Capacity Act Code of Practice contains legal guidelines that someone can follow when making decisions on behalf of another.
Office of Public Guardian (OPG)
This is a government body, which protects the private assets and financial affairs of people who lack capacity, within the framework of the Mental Capacity Act (2005).
- registers Lasting Powers of Attorney
- supervises Deputies
- ensures decisions made by the Court of Protection are enforced
- helps Attorneys and Deputies carry out their duties
- carries out investigations on any concerns about the actions of Attorneys and Deputies
Contact Osborne Morris & Morgan
If you need to make decisions for someone who is lacking capacity, we can help you at every step of the way. Get in touch with our Court of Protection specialist solicitors today, by calling 01525 378177 or contacting us online.
We look forward to supporting you in your Deputy role.