The Mental capacity act 2005 provides a statutory framework to protect the rights of those who lack the mental capacity to make their own decisions. The MCA is underpinned by five key principles:
- A presumption of capacity,
- the right to be supported to make own decisions,
- the right to make what might be seen as eccentric or unwise decisions,
- the principal of “best-interest” anything done for or on behalf of people without capacity must be in their best interest.
- The least restrictive intervention principle anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
When it has been determined formally that the individual lacks capacity to manage their own finances, this creates the requirement for the role of an appointee. This role can be performed by a member of the family, some local authorities have a team who can act in this role, and where required, we will also take on this role, through our partner company Professional Appointees.
As an appointee the person is responsible for making and maintaining any benefit claims. Specifically the person must:
- sign the benefit claim form
- tell the benefit office about any changes which affect how much the claimant gets
- spend the benefit (which is paid directly to you) in the claimant’s best interests
- tell the benefit office if you stop being the appointee eg, the claimant can now manage their own affairs
If the benefit is overpaid, depending on the circumstances, the appointee can be held responsible.
It’s a role recognised in law and must be taken seriously.
Court Appointed Deputy
You can apply to become someone’s deputy if they ‘lack mental capacity’ – this means they can’t make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times.
People may lack mental capacity because, of their learning disability
As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.
There are 2 types of deputy:
- property and financial affairs, eg paying bills, organising a pension
- personal welfare, eg making decisions about medical treatment and how someone is looked after
You can apply to be just one type of deputy or both. In most cases you would be applying to become a Property and Financial Affairs deputy. This gives you the right to do things like sign a tenancy agreement on their behalf and determine how best to use their money in their best interests.
We cannot act in this role, however it is a role we suggest a family member looks to take up.