If your case is likely to require the Court of Protection, it can often be a very confusing process.
There are a lot of phrases and procedures involved. At Jordan’s, we want our clients to understand every aspect of their case. To help you understand some of the terms that are used we have provided explanations:
Unlawful deprivation of liberty.
The term ‘DOL’ stands for deprivation of liberty. This refers to any act which stops or restricts someone from doing something. If the correct procedures are not followed when depriving a person of liberty, it may be deemed unlawful. The Mental Capacity Act prohibits the deprivation of a person’s liberty under that Act unless it has been authorised by the Court of Protection, or has been authorised for life-sustaining or other emergency treatment while a decision is awaited from the Court, or has been authorised under the DOLS procedure.
Deprivation of Liberty Safeguards (DoLS).
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. They aim to make sure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.
Best interests cases
The Mental Capacity Act sets out a process for determining what is in someone’s best interests. This involves taking into account a number of factors of the person who lacks capacity, including their current wishes, as well as their wishes and values before they lost capacity. The views of family members, carers and professionals with relevant specialist knowledge are also taken into account. There will often be a best interests meeting, which is organised by the local authority.
Living and care arrangements.
Should a person lack capacity, it is necessary to ensure that their living and care arrangements are properly considered. Depending on the person’s circumstances, this may require family; semi-independent; or residential accommodation. Care arrangements will also need to be considered to ensure that the person lacking capacity’s needs are being met at all stages.
Contact and visits.
Contact is one of the most crucial aspects of cases involving Mental Capacity. Relatives will often wish to have a clear idea about when they can visit their family member and how often. Contact must always be considered as part of the best interests decisions for a person lacking capacity. This will take into consideration their own wishes and feelings, alongside the impact that contact may have upon them.
Property and affairs.
If someone lacks capacity, it may be that they are unable to make decisions regarding their own property and affairs. Examples of this could be regarding the sale of property, managing businesses or being able to make decisions on how to spend their own money. If this is the case, someone can manage this on their behalf This is known as a Power of Attorney.
Matters concerning the Office of the Public Guardian (OPG).
The Office of the Public Guardian (OPG) is a government department that has been set up to protect people in England and Wales who may not have the mental capacity to make certain decisions for themselves, such as about their health and finance.
The OPG may become involved if there are concerns about how a person lacking capacity is being cared for, or if there are disputes over how that person’s property and affairs are being managed. The OPG does not make decisions, but instead, monitors deputies appointed by the Court, to manage another persons’ affairs and registers Powers of Attorney.
The OPG does not deal with disputes that require a hearing.
Medical treatment and Aftercare.
Medical treatment relates to the help that a person who lacks capacity will receive. Aftercare may relate to the treatment that a person who lacks capacity may receive once they are discharged from hospital.
Community Care assessments.
A local authority (also known as local council) has a duty to assess the care needs of a person who lacks capacity. This assessment will determine what care needs they have, and whether the local authority will contribute towards meeting them. Any person has a right to this assessment, even if they will end up paying for their own care.
Applications to the Court of Protection on behalf of someone who wishes to be appointed as deputy for a person lacking capacity.
A deputy is a person appointed to manage the affairs of someone who lacks the mental capacity to manage their own affairs. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances could be a professional. You can apply to become a deputy for property and affairs or for personal welfare.
Registration of Powers of Attorney.
A power of attorney enables someone else to manage your affairs on your behalf when you are no longer able to or no longer want to.
There are 3 types of Powers of Attorney- Enduring Power of Attorney, Lasting Power of Attorney and an Ordinary Power of Attorney. However, Enduring Powers of Attorney were replaced by Lasting Powers of Attorney in 2007.
Challenging the appointment of an existing deputy or attorney
A deputy is a person appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity. An Attorney is a person who has been chosen by the person lacking capacity, to make decisions on their behalf. If there are concerns about the appropriateness of the actions of either the deputy or attorney, which cannot be resolved, then it is possible to challenge their decisions through the Court of Protection.