05 Nov 2009

Media have raised some important issues and concerns on the emotive subject of who has the authority to manage a person’s affairs if they lose their mental capacity.

We all know how important it is to plan for the future. Having a Lasting Power of Attorney (LPA) or a previous version, called an Enduring Power of Attorney (EPA), in place should be as common and natural as making a will. It ensures that a person of your choosing will be able to manage your affairs should you lose capacity, be it as a result of dementia, mental illness or an accident.

But without an appropriate power of attorney in place, someone losing mental capacity needs to be protected. This has always been the purpose of the Court of Protection. In these circumstances, the court will often appoint a ‘deputy’ to make decisions that must be in the persons’ best interests. That deputy is usually a family member or close friend but sometimes there may not be anyone who is able or willing to take on the role, or the court may have reason to believe that other arrangements are more appropriate. In such circumstance a Local Authority or professional may be appointed as deputy.  In the majority of cases the appointed person will be free to invest, spend and manage the funds in ways they feel most appropriate for the individual.

The vast majority of applications to appoint a deputy are supported by family members and are processed by the court without any hearing being necessary. But in some cases there are disputes and hearings are required. These court sessions are conducted in private as highly personal matters are often discussed.

Cases where vulnerable people have their funds misappropriated by unscrupulous individuals is something we need to guard against. The Office of the Public Guardian (OPG), which was set up by the Mental Capacity Act 2005, supervises all deputies and has the power to investigate allegations of abuse. But of course the onus should always be on prevention.

Media reports have claimed that to have deputies monitored by the OPG costs individuals £800 a year. This is only true in 2.5 per cent of cases. In 72 per cent of cases, the fee is £175; in 15 per cent of cases it is free.

But no system is perfect and we are always looking for ways to make it as effective and efficient as we possibly can.

The Mental Capacity Act 2005 came into force in October 2007 and brought with it many improvements. The new Court of Protection generally allows deputies more freedom than in the past and people have more choices than ever on how to plan ahead for the future. But we always strive to be responsive to customers, so we have now made the Lasting Power of Attorney forms cheaper to register and simpler to complete.

Since October 2007 most deputies have been able to keep money in any account they choose and access it with minimal restrictions. This is a significant improvement on the previous system, when greater restrictions were in place. If a person does have an order they feel is too restrictive, they are free to apply to the court for a new order, although any decisions would be a matter for a judge. 

When the new measures in the Act were first introduced, there were teething problems. The majority of the 3,000 complaints mentioned in last week’s article relate to delays at the OPG arising from very high volumes of work  -the result of an unexpectedly high level of public demand to register the new LPAs. But there have since been big improvements in the OPG’s service to the public, highlighted by positive comments in a report that will be published by the independent Public Guardian Board, tomorrow.

In addition, the judiciary, court staff and court users are all agreed that the time is right to look at our court forms and processes. I have therefore agreed for Sir Mark Potter, President of the Court of Protection, to set up a committee to review the current Court of Protection Rules to ensure they provide an efficient and effective service.

Jack Straw
Lord Chancellor and Secretary of State for Justice

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