The importance of the Court of Protection is explained
The Court of Protection is of great importance as it exists to safeguard vulnerable people who lack the mental capacity to make decisions for themselves. These decisions may relate to the person’s finances or their health and welfare. Recent changes in the reach and jurisdiction of the court will be of interest to all those involved with vulnerable people.
The Court of Protection before the Mental Capacity Act 2005
The Mental Capacity Act (The new Act) came into force on 1st October 2007 changing the status of the Court of Protection. Before this date, it had existed as an office of the Supreme Court with jurisdiction over the property and affairs of people who lacked mental capacity. Its powers derived from part 7 of the Mental Health Act 1983.
The Mental Capacity Act 2005 and the new Court of Protection
On 1st October 2007, part 7 of the Mental Health Act 1983 was repealed, and the office of the Supreme Court ceased to exist. At the same time the new Court of Protection was created to continue to safeguard the affairs of vulnerable people.
The jurisdiction of the new Court of Protection is wider than its predecessor. The old court dealt exclusively with financial matters. The new court also deals with health and personal welfare. It has the same power in relation to health and welfare decisions as the High Court.
From PGO to OPG
The Public Guardianship Office was the administrative arm of the old court which oversaw the day-to-day management of patient’s financial affairs. (‘Patient’ is the old term used for people who lacked capacity). The organisation was managed by a chief executive appointed from the senior civil service. The new Act changed the structure of the organisation by creating the role of the Public Guardian; an individual appointed by the Lord Chancellor to protect people who lack capacity. The Public Guardian is supported in his role by the Office of the Public Guardian which replaces the old Public Guardianship Office. The Public Guardian and his office help protect people who lack capacity by:
- Setting up and managing a register of Lasting Powers of Attorney (LPA);
- Setting up and managing a register of Enduring Powers of Attorney (EPA);
- Setting up and managing a register of court orders that appoint Deputies;
- Supervising Deputies, working with other relevant organisations (for example, social services, if the person who lacks capacity is receiving social care);
- Instructing Court of Protection Visitors to visit people who may lack mental capacity to make particular decisions and those who have formal powers to act on their behalf such as Deputies;
- Receiving reports from Attorneys acting under LPAs and from Deputies; and
- Providing reports to the COP, as requested, and dealing with cases where there are concerns raised about the way in which Attorneys or Deputies are carrying out their duties.
What was a Receiver?
Under the old law, the Court of Protection had the power to appoint a Receiver to deal with the property and affairs of someone who lacked capacity. The Receiver’s role was purely financial. He had no authority to decide where a person should live or what healthcare they should receive. Such health and welfare decisions were the responsibility of the next of kin, in consultation with doctors, care professionals, and the client where appropriate. Under the new Act the role of Receiver has been replaced by that of the Deputy; a role which can now include decision making powers in relation to health and welfare.
What is a Deputy, and how does the role differ to that of Receiver?
Under the new Act, the Court of Protection has the power to make a decision on behalf of a person who lacks the mental capacity to decide for himself. If incapacity is established, this is the Court’s preferred course of action, however, if there are a number of decisions which need to be made now and in the future, the court can appoint a Deputy to make these decisions on the Protected Person’s behalf. (the replacement term for ‘Patient’)
Any Deputyship order the court does make, will set out the Deputy’s specific powers in relation to the Protected Person. Powers can relate to property and affairs only (like an old receivership), health and welfare (rarely), or both areas. The Court, to date, has been particularly reluctant to appoint health and welfare Deputies, preferring applications to be made each time a decision is required.
The approach under the new law is very different from that under the old. One of the key principles of the new Act is that every person is assumed to have capacity to make a decision unless it is proved otherwise. In practice, this means that even when a Deputy has been appointed, there remains an ongoing duty to assess whether the person has capacity to make each separate decision as it arises. Only if the Deputy assesses that the person does not have capacity to make this particular decision; can they then make it on their behalf.
In contrast, under the old law, once a receivership order was in place, the assumption was that the person lacked capacity to make any decisions at all with regard to his property and affairs. The judge or the receiver (depending on the nature of the decision), would make all decisions on the person’s behalf without considering whether that particular decision might fall within his or her capabilities. In making the decision the judge or Receiver would take the person’s views and wishes into account. If a person could later prove with medical evidence that he had regained capacity, the Court’s role would end, and the assumption would be that the person could once again make all of his financial decisions for himself.
What is an EPA?
Before 1st October 2007, a person with capacity could grant an Enduring Power of Attorney (EPA) authorising another person to act for them if they became incapable of managing their property and affairs.
The purpose of this was to avoid the appointment of a Receiver or Deputy, should the person lose capacity; and to exercise choice over who should take on this important role. EPAs remain valid under the new law, whether or not they have been registered at the Court of Protection, provided that both the Donor of the Power, and the Attorney signed the document prior to 1 October 2007.
In practice, an EPA can start to be used while the Donor still has capacity, provided they consent. This could happen, for example, in a case where mobility becomes an issue for the Donor. It is only if a Donor starts to lose mental capacity that the Attorney comes under a duty to register the EPA with the Office of the Public Guardian (OPG) (formerly the Public Guardianship Office).
Powers granted under EPAs are not uniform, and will vary according to the Donor’s wishes. For example, one Donor may grant the Attorney the power to sell their home, whilst another may not.
The changes under the new Act
The new Act makes several improvements to the Power of Attorney system. Enduring Powers of Attorney (EPA) are replaced by Lasting Powers of Attorney (LPA) which are much wider in scope. There are two types of LPA: the property and finance LPA, and the personal welfare LPA. These are complex documents, but by way of brief summary:
The Property and Finance LPA
The property and finance LPA allows a person to appoint someone to look after their financial affairs. This can include paying bills, collecting income and benefits, or selling a house. Like an EPA, the Attorney’s power will be subject to any restrictions or conditions the Donor chooses to include.
The Personal Welfare LPA
The personal welfare LPA allows a person to grant an Attorney authority over such matters as where they live; health care; and treatment. It can include the power for the Attorney to give or refuse consent to medical treatment. An example of this would be the donor granting the Attorney power to refuse life sustaining treatment on their behalf.