When not to make decisions as a Deputy

You’ve been appointed as a Deputy under the Court of Protection and you’re clear on the decisions the Court order allows you to make on behalf of the person who lacks capacity. But how do you know when not to make a decision? And in what circumstances are you’re decision-making powers restricted?

The decision I want to make is not listed in the Court order. What can I do?

It’s likely that during your deputyship you will from time to time be faced with a decision that is not listed in the Court order, or that you are not sure whether you are entitled to make. When this happens you have two choices. You can either ask the Court to make the decision in question, or you can apply to have your powers extended so that you may make the choice yourself. It’s important, as with all decisions you make as a  Deputy, that you consider which option is in the best interests of the incapacitated person. If it’s a decision that you feel unqualified or under-informed to make, you should do the relevant research before deciding whether you require a third party specialist to assist you.

What are the limitations on my powers during my deputyship?

As well as understanding the extent of your powers, it is equally as important to understand when they’re restricted. The specifics of your decision-making authority will be laid out in the Court order, however there are a number of limitations that apply to all deputies; you cannot make a decision where:

• The person in question has the capability to make this decision for him/herself.
• It relates to the physical restraining of the person, unless such restraint is immediately necessary in order to prevent them from harming themselves. In such a case the restraint must be reasonable and proportionate.
• The decision infringes on a decision made by an Attorney appointed by the person in question prior to their incapacity, save where new circumstances require a change in decision.
• The decision is one that denies the provision or continuation of treatment necessary to keep the person alive. Only the Court may make a decision in this situation.

As the Deputy, can I make family decisions on behalf of the incapacitated person?

When a decision needs to be made about a family matter, which would otherwise have been made by the incapacitated person, it’s important to seek guidance from the Mental Capacity Act 2005 – Code of Practice, as there are strict guidelines as to the decisions you can and cannot make. The Act lists several decisions under ‘Family Relationships’, which are excluded from a Deputy’s mandate, including:

• Consenting to a marriage or civil partnership
• Consenting to sexual relations
• Consenting to a divorce
• Consenting to the termination of a civil partnership
• Consenting to an adoption agency placing a child up for adoption
• Giving consent under the Human Fertilisation and Embryology Act 2008.

Elsewhere, the Code also states that as a Deputy you may not refuse another family member, or person in general, from having access to the incapacitated person if they request as much.

You can find out more about the limitations on your deputyship by referring to the Mental Capacity Act 2005 – Code of Practice, or by contacting the team here at Gillhams Solicitors – specialists in Court of Protection matters – for a free and confidential chat.