More about court orders and deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:court ordersDeputies:who may beDeputiesCourt ordersMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:powersDeputiesPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:circumstances in which appropriatePersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputies(reproduced in full in appendix A)Personal welfare deputies:circumstances in which appropriatePersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:circumstances in which appropriatePersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:circumstances in which appropriatePersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:circumstances in which appropriatePersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesCodes of Practice:Mental Capacity Act 2005 Code of Practice (2007):para 7.21Personal welfare deputies:ethos of legislation, and:nearest and dearestPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:ethos of legislation, andPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:property and financial deputyship, andPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:donees, andPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesPersonal welfare deputies:wishes and feelings, andPersonal welfare deputies:best interest, andPersonal welfare deputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputies:personal welfareDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:who may beDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:two or moreDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:powersDeputies:dutiesDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:powersDeputies:dutiesDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:powersDeputies:dutiesDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:advance decisions, andDeputiesAdvance decisions:deputyship, and(reproduced in full in appendix A):s1Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:restrictions onDeputiesMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewDeputies:powers:donees, andDeputies:powers:court, andDeputies
3.121Court orders and deputies are dealt with in greater detail later. However, in brief, MCA 2005 s15 provides that the Court of Protection may make declarations as to:
•whether a person has or lacks capacity to make a decision specified in the declaration;
•whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
•the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
3.122Section 16 applies if a person lacks capacity in relation to a matter or matters concerning their personal welfare or property and affairs.
1MCA 2005 s16(1). It enables the court by order to make such decisions on their behalf or to appoint a deputy to make the decisions for the person.
3.123Without prejudice to MCA 2005 s4, the court may make an order or appoint a deputy on such terms as it considers are in the incapacitated person’s best interests – and may do so even though no application is before it ‘on those terms’.
3.124Naturally, if the judge can make the decision, it will generally be inappropriate for him or her to authorise someone else to make it.
3.125Consequently, the Act provides that a decision by the court is to be preferred to the appointment of a deputy to make a decision; and that the powers conferred on the deputy should be as limited in scope and duration ‘as is reasonably practicable in the circumstances’: see MCA 2005 s16(4).
Personal welfare deputies
3.126Personal welfare deputy orders are considerably less common than property and affairs deputyships for reasons which seem invalid or inconsistent to some incapacitated people and their families.
3.127The circumstances in which it is appropriate to appoint a personal welfare deputy are explained in
Re P,
2[2010] EWHC 1592 (Fam), (2010) 13 CCLR 610. G v E, Manchester City Council and F,
3[2010] EWHC 2512 (COP). SBC v PBA and others4[2011] EWHC 2580 (Fam), [2011] COPLR Con Vol 1095. and
A Local Authority v TZ (No 2).
5[2014] EWHC 973 (COP).3.128Roderic Wood J observed in SBC v PBA and others that the test to be applied when determining whether to appoint a deputy (whether to manage a person’s property and affairs or take decisions regarding their health and welfare) is to be derived from the unvarnished words of the MCA 2005. What is in the person’s best interests is the governing criterion, as with all other decisions made under the Act.
3.129As His Lordship noted, nothing in the then two leading cases on the appointment of deputies compelled a different conclusion:
Re P (vulnerable adult: deputies)6[2010] EWHC 1592 (Fam), (2010) 13 CCLR 610. and
G v E (deputyship and litigation friend).
7[2010] EWHC 2512 (COP).3.130Naturally, it will rarely be appropriate for a judge to effectively deputise someone to judge a dispute or make a decision brought before the court for a judicial decision.
3.131However, sometimes it may well be in a person’s best interests to authorise their spouse or life partner, or the parent of a severely learning disabled young adult, to deputise for them in day-to-day personal welfare matters as well as day-to-day property matters.
3.132That individual will often be best placed to make good quality decisions on the incapacitated person’s behalf which best promote their interests in connection with community care assessments and services; access to personal information about them; complaints about their care, or treatment; arrangements for dental and optical treatment; GP appointments, medical appointments and examinations; social activities; and day-to-day care, education and training.
8See Code of Practice para 7.21.3.133In each of these instances, if the incapacitated person still had capacity they would decide whether or not to consent to proposed treatment or care and it may well be in their best interests that their ‘nearest and dearest’ now deputises for them in this capacity. The marriage vows are a relevant statement made when the person had capacity. Cohabitation, devotion and mutual commitment over many years are a relevant circumstance.
3.134One advantage of an approach that takes each case on its merits is that a symmetry emerges from the shadows which is consistent with the ethos of the legislation in enabling a judge to advance the best interests of people who have lost capacity. An individual who still had capacity when the Act came into force was or is able to appoint a trusted person such as a spouse or partner to make future decisions for them which they cannot make. What, though, of the person who lost capacity to appoint their spouse or partner before the Act was in force? As in the case of their property, surely the court has the option of appointing as their deputy the person they would have appointed as their attorney. That is, of course, provided on the evidence that the advantages are real and it is in their best interests.
3.135On this construction, the argument that property and financial affairs deputyship is somehow always different in kind to personal welfare deputyship is artificial. For many incapacitated people, just as many personal welfare decisions as financial decisions are made for them each week.
3.136The fact that a person who provides routine care is given legal protection by MCA 2005 s5 does not mean that it is not in their best interests to have a personal welfare deputy any more than the fact that a person who provides necessary goods and services is given legal protection by section 7 means that it is not in their best interests to have a financial deputy. Sections 5 and 7 both exist to ensure that people who are incapacitated do not go without what they need.
3.137It may be significant that the same subsection (MCA 2005 s6(6)) provides that section 5 does not authorise a person to do an act which conflicts with a decision made by a donee or a deputy, which perhaps points away from a suggestion that the statutory norm is that donees but not deputies will commonly make personal welfare decisions in preference to reliance on section 5.
3.138Ultimately, the decision in each case ought to turn on what is in that person’s best interests. It would be strange if the statutory framework is that a judge ought not to appoint a personal welfare deputy even if he or she is satisfied that it is in the person’s best interests. Where does this leave their wishes and feelings? What of their beliefs and values, and the views expressed by the persons consulted? MCA 2005 s4 says that the judge must have regard to these considerations. The position of a spouse or partner of 50 years’ duration or the parent of a brain-damaged child who is having their 18th birthday is not the same as that of a paid carer.
Who may be a deputy
3.139A deputy must be an adult (aged 18 or over) or, in the case of property and affairs deputyships, a trust corporation.
9MCA 2005 s19(1).3.140A person may not be appointed as a deputy without their consent.
10MCA 2005 s19(3).3.141The court may appoint the holder of a specified office or position as the person’s deputy,
11MCA 2005 s19(2). for example the holder of a particular local authority finance office. This avoids the need for a new order when the current holder of the post moves on and is replaced.
Two or more deputies
3.142The court may appoint two or more deputies to act jointly, jointly or alone (‘severally’), or jointly in respect of some matters and jointly or alone in respect of others.
12MCA 2005 s19(4).A deputy’s powers and duties
3.143Subject to certain restrictions dealt with below, the court may confer on a deputy such powers and/or impose on them such duties as it thinks necessary or expedient for giving effect to, or otherwise in connection with, their appointment.
13MCA 2005 s16(5).3.144A deputy:
•is appointed to make decisions on the incapacitated person’s behalf, not on the court or judge’s behalf (in other words, the deputy is deputising for the person concerned, not for the judge or court);
•is to be treated as that person’s agent in relation to anything done or decided within the scope of their appointment and in accordance with the Act;
14As a general proposition, whatever P has power to do for themselves (eg request a community care assessment) may be done by their agent and, conversely, what a person cannot do for themselves (eg force a doctor to give a particular drug) cannot be done by their agent. •must act in accordance with the authority conferred by the court.
3.145With regard to property and affairs deputyships, the court may confer on a deputy powers to:
•take possession or control of all or any specified part of the person’s property;
•exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
15MCA 2005 s19(8). Interplay between advance decisions and deputyship
3.146A personal welfare deputy may not consent to treatment which is prohibited by an advance decision because the authority conferred on a deputy is subject to the provisions of the Act.
16MCA 2005 s20(6). Furthermore, MCA 2005 s20(1) provides that a deputy does not have power to make a decision for the person if he or she knows or has reasonable grounds for believing that the person has capacity to decide the matter, and the advance decision has effect as if the refusal was made with capacity at the time the treatment is proposed.
17MCA 2005 s26(1).Restrictions on deputies
3.147The Act provides that certain powers may not be conferred on or exercised by a deputy:
Powers which a deputy does not have | Powers which the court may not give a deputy |
With regard to the person’s personal welfare |
A deputy does not have power to make a decision in relation to a matter if he or she knows or has reasonable grounds for believing that the person concerned has capacity in relation to that matter (MCA 2005 s20(1)). | The court may not give a deputy power to prohibit a named person from having contact with the incapacitated person (MCA 2005 s20(2)(a)). Power to prohibit such contact is reserved to judges (and personal welfare attorneys). |
A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to the relevant person (MCA 2005 s20(5)). | The court may not give a deputy power to direct a professional responsible for the relevant person’s health care to allow a different professional to take over that responsibility (MCA 2005 s20(2)(b)). |
A deputy may not do an act that is intended to restrain the person unless the four conditions set out in MCA 2005 s20(7) are satisfied. | The court may not give a deputy power to make a decision on the relevant person’s behalf which is inconsistent with a decision made, within the scope of their authority and in accordance with the Act, by a donee of a lasting power of attorney (MCA 2005 s20(4)). |
A deputy is not authorised to deprive the person of their liberty. | |
With regard to the person’s property and affairs |
A deputy does not have power to make a decision in relation to a matter if he or she knows or has reasonable grounds for believing that the person concerned has capacity in relation to that matter (MCA 2005 s20(1)). | The court may not give a deputy power to make a decision on the relevant person’s behalf which is inconsistent with a decision made, within the scope of their authority and in accordance with the Act, by a donee of an LPA (MCA 2005 s20(4)). |
| A deputy may not be given powers with respect to the execution of a will for the person concerned (MCA 2005 s20(3)(b)). |
| A deputy may not be given powers with respect to the settlement of any of the person’s property, whether for P’s benefit or for the benefit of others (MCA 2005 s20(3)(a)). |
| A deputy may not be given powers with respect to the exercise of any power (including a power to consent) vested in the person whether beneficially or as trustee or otherwise (MCA 2005 s20(3)(c)). |
General limitations imposed by the Act |
The authority conferred on a deputy is subject to the provisions of the Act and, in particular, to MCA 2005 s1 (the principles) and s4 (best interests): MCA 2005 s20(6). |
Powers of deputies compared with donees and the court
3.148It can be seen that deputies have fewer powers than donees and judges:
| Court | LPA donee | Deputy |
Power to refuse life-sustaining treatment | ✓ | ✓ | ✗ |
Power to give or refuse consent to other forms of treatment and care | ✓ | ✓ | ✓ |
Power to restrain P to give care or treatment | ✓ | ✓ | ✓ |
Power to prohibit contact with a named person | ✓ | ✓ | ✗ |
Power to allow another person to take charge of P’s treatment | ✓ | ✓(?) | ✗ |
Power to deprive P of their liberty | ✓ | ✗ | ✗ |
A donee’s powers are subject to any conditions and restrictions in the LPA and any authority to give or refuse life-sustaining treatment is conditional on it being expressly provided for in the LPA. Similarly, a deputy’s authority is subject to any duties and conditions specified in the order appointing them. A donee, deputy or judge may not make a decision for a person if they know or reasonably believe that the person has capacity to make their own decision. There may be other qualifications in a particular case such as the existence of an advance decision and the table compares the maximum powers which each decision-maker may possess.