The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions themselves.
Everyone working with and/or caring for an adult who may lack capacity to make specific decisions must comply with this Act, which means they must make decisions in their best interests. The same rules apply whether the decisions are life-changing events or every day matters.
At certain times, a decision-maker may be faced with people who disagree about a person's best interests. Family members, partners and carers may disagree between themselves, or they might have different memories about what views the person expressed in the past. They might also agree with decisions made on the person's behalf by the local authority or PCT, such as where the person should live and the amount of contact he or she should have with certain relatives.
At Simpson Millar LLP, we are regularly instructed by families and carers who want to challenge decisions made. We can advise on the steps that can be taken to obtain a second opinion, involve an advocate, hold a formal or informal 'best interests' case conference, attempts some form of mediation or pursue a complaint through the organisation's formal procedures.
Ultimately, if all other attempts to resolve the dispute have failed, we can provide legal advice and representation in the Court of Protection, where the court might need to decide what is in the person's best interests.
Funding from the Legal Aid Agency (known as legal help or public funding) is available for the provision of advice in this area.
In relation to challenges against an authorised deprivation of liberty, the availability of legal aid for initial advice, before proceedings have commenced, is subject to a means test and a merits test, but if proceedings have already been issued or need to be issued, you may not have to satisfy the means test, so your financial circumstances will not be relevant. In other cases in the Court of Protection, the availability of legal aid at all stages is subject to a means test and a merits test.
Calculating your entitlement to legal aid can be complicated; if you would like to find out whether you are eligible for legal aid, please feel free to contact us.
Broadly, if you are in receipt of:
- income support,
- income-related employment and support allowance,
- income-based jobseeker’s allowance,
- guarantee pension credit, or
- universal credit and
- you do not have savings over £8,000
- you will be entitled to legal aid for the purposes of the means test.
If you receive another benefit or have a low income, you may also qualify for legal aid, provided your disposable income is less than £733 per month, but you may have to pay a contribution towards your legal costs. If you have savings over £8,000 you will not qualify.
We are able to calculate whether your income and capital are below the threshold.
If you are not eligible for legal aid please do not worry; we also provide specialist advice, assistance and representation at highly competitive rates on a private fee-paying basis. We may be able to agree a fixed fee for certain work but even if we cannot do so in your particular case, we are happy to discuss the best way to meet your needs.
"An excellent reputation for dealing with public authorities in relation to serious welfare issues, including sexual consent and best interest decisions. Also experienced in deprivation of liberty applications and medical treatment cases. Represents both protected individuals and family members, and has real expertise in the overlap between Court of Protection and public law work.
They are a very good firm, very reliable. They seem to turn up on a lot of really sensitive and potentially very high-profile cases - the really complex ones in Court of Protection like medical treatment, sterilisation and sexual consent.
Absolutely first-rate department. Combines the efficiency of some firms with the civil rights approach of others."
Quoted in Chambers and Partners 2016 UK edition
Contact us now to discuss how we can help you by completing our, no obligation, online enquiry form and we will call you back or you can call us directly on 0345 357 9850.