Understanding mental capacity, best interests and the role of the Court of Protection

How is mental capacity assessed? 

Mental capacity is not necessarily an all-or-nothing matter. Someone may have the ability to make certain decisions independently whilst needing support with others. 

For example, a person with a brain injury may be able to manage everyday purchases, decide how to spend their personal money or make decisions about their relationships, but may struggle with more complicated financial matters. 

Shareen explained that capacity is both decision-specific and time-specific. The question is whether someone can make a particular decision at the time it needs to be made. 

Under sections 2 and 3 of the Mental Capacity Act, an assessment considers whether a person is unable to make a decision because of an impairment of, or disturbance in the functioning of, their mind or brain. 

The impairment may be temporary or permanent. However, the existence of a medical condition alone does not establish that someone lacks capacity. 

What does a mental capacity assessment involve? 

When assessing whether someone can make a particular decision, consideration is given to whether they can: 

• Understand the information relevant to the decision.
• Retain that information for long enough to make the decision.
• Use or weigh up the information to reach a decision, including understanding the potential consequences.
• Communicate their decision, whether verbally, in writing, through sign language or by another appropriate method. 

Shareen highlighted that the information should be presented in a way the person can understand. This might involve using simpler language, pictures, alternative communication methods or additional support. 

Someone does not necessarily need to remember information for a long period. They may only need to retain it long enough to make the decision. 

An assessment should therefore consider the person's individual circumstances and the support they need, rather than relying on assumptions about their abilities. 

What does making a decision in someone's best interests mean? 

As Shareen explained, mental capacity is specific to each decision. Someone may be able to make certain decisions independently but need others to make more complicated decisions on their behalf. 

Where a person lacks capacity to make a particular decision, the Mental Capacity Act 2005 requires any decision made on their behalf to be in their best interests. However, this does not mean that a Deputy, family member or professional can simply decide what they personally believe would be best. 

Section 4 of the Act provides a framework for making these decisions, taking account of the person's individual circumstances, wishes and feelings. Importantly, the person should remain involved in the decision-making process as much as possible, even where they lack capacity to make the final decision themselves. 

During the presentation, Shareen explained several factors that must be considered when making a best interests decision. 

Involving the person in decisions 

Even where someone lacks capacity to make a particular decision, they should still be encouraged and supported to participate in the process as much as possible. 

Their views remain important, including what they want to happen and why. This may involve adapting how information is explained, allowing additional time for discussions or using alternative methods of communication to help the person express their wishes. 

For example, if someone wishes to move home but lacks capacity to make that decision independently, their reasons for wanting to move should still be considered alongside the other relevant circumstances. 

Considering past wishes, beliefs and values 

Decision-makers should also consider the person's past and present wishes and feelings, together with their beliefs, values and any other factors that may have influenced their decisions. 

Shareen gave the example of a Deputy considering whether to make financial gifts on behalf of someone who now lacks capacity. 

If the person regularly gave money to their children or grandchildren for birthdays, Christmas or other occasions before losing capacity, their previous gifting arrangements may provide useful evidence of their wishes. 

Written records, such as letters, emails or notes, may also help establish what the person would have wanted. Similarly, their religious or cultural beliefs and personal values may be relevant when considering what is in their best interests. 

Consulting family members and professionals 

People who know the individual well may be able to provide valuable information about their preferences and circumstances. 

Depending on the decision, this could include family members, close friends, carers, social workers, case managers, attorneys or Deputies. 

Considering whether a decision can be delayed 

Another important consideration is whether the person may regain capacity in the future. 

For example, following a brain injury, someone's ability to make certain decisions may change as their recovery progresses, although this will depend on their individual circumstances. Where appropriate, it may be possible to delay a significant decision until the person can make it themselves. 

Shareen used decisions involving the sale of someone's home as an example of why this consideration can be particularly important. If there is evidence that the person may regain capacity within a reasonable period, decision-makers should consider whether the sale needs to take place immediately or whether it can be postponed. 

The role of the Court of Protection 

The Court of Protection is a specialist court in England and Wales that makes decisions and resolves disputes involving people who lack mental capacity to make particular decisions for themselves. 

Its purpose is to protect the rights, welfare and interests of people who may need others to make certain decisions on their behalf. 

During the presentation, Shareen explained that the court can deal with a wide range of matters, including: 

• Mental capacity: Determining whether someone has capacity to make a particular decision and resolving disagreements about capacity.
• Property and financial affairs: Deciding who should manage someone's finances, property or other financial matters.
• Health and welfare: Making decisions about matters such as care arrangements, medical treatment, where someone should live and contact with other people.
• Specific applications: Considering applications relating to matters such as statutory wills, property transactions and decisions requiring additional court authority. 

The Court of Protection can also appoint a Deputy to make decisions for someone who lacks capacity to manage particular aspects of their affairs. 

What is a Court of Protection Deputy? 

A Deputy is someone appointed by the Court of Protection to make certain decisions on behalf of a person who lacks mental capacity to make those decisions independently. 

The two main types of Deputyship are: 

• Property and Financial Affairs Deputyship: This involves managing financial matters such as bank accounts, bills, benefits, property and other assets.
• Health and Welfare Deputyship: This can involve decisions relating to a person's care, medical treatment or living arrangements. These appointments are less common and are generally made where there is a particular need for ongoing decision-making authority. 

The powers given to a Deputy are set out in the court order appointing them, meaning their responsibilities will depend on the person's individual needs and circumstances. 

A Deputy may be a family member, friend or professional, such as a solicitor or accountant. In some circumstances, a professional trust corporation may also be appointed. 

How is a Deputy appointed? 

Applying to become a Deputy involves submitting an application to the Court of Protection, supported by evidence of the person's mental capacity to manage their property and financial affairs. 

As Shareen explained, an important part of this process is notifying the person concerned and other relevant individuals, in accordance with the court's procedures. This gives them an opportunity to share their views or raise objections, including concerns about who has been proposed as Deputy. 

Where disagreements arise, the court may request further evidence or arrange a hearing to consider the concerns before deciding whether to appoint the proposed Deputy. 

What is the difference between a Deputy and an attorney? 

A key distinction is that a Lasting Power of Attorney (LPA) must be made whilst the person has the mental capacity to create it. 

An LPA allows someone to choose who they would like to make certain decisions on their behalf, either when authorised under the LPA or if they lose capacity in the future, depending on the type of LPA. 

By comparison, a Deputy is appointed by the Court of Protection where a person already lacks the capacity to make the relevant decisions and a Deputyship is required. 

This distinction can be particularly important for individuals planning how their affairs should be managed in the future. 

What does a Property and Financial Affairs Deputy do? 

A Property and Financial Affairs Deputy may be responsible for managing a wide range of financial matters on behalf of the person they support. 

During the presentation, Shareen explained that these responsibilities can include: 

• Managing bank accounts, income and everyday expenditure.
• Paying household bills, utilities and care fees.
• Reviewing benefit entitlements and helping ensure the correct benefits are claimed.
• Arranging tax returns and working with accountants where necessary.
• Managing tenancy agreements and other financial contracts.
• Overseeing property-related matters and dealing with applications for additional authority when required.
• Working with solicitors, case managers, social workers and other professionals.
• Consulting the person and those involved in their care when making best interests decisions.
• Preparing annual reports and financial accounts for the Office of the Public Guardian. 

For individuals who have received compensation following a serious injury, a Deputy may also work alongside their legal team and other professionals to help manage their financial needs. 

This might involve dealing with interim compensation payments, supporting arrangements for rehabilitation, or managing funds intended to provide long-term care and support. 

Shareen also highlighted the importance of maintaining regular contact with the person receiving support. This may involve telephone conversations, emails, or face-to-face meetings, depending on the person's needs and preferred methods of communication. 

Where someone is unable to communicate their wishes directly, a Deputy may need to consult family members, carers or other professionals who know them well. 

The Deputy's role should be to manage these responsibilities whilst continuing to involve the person in decisions wherever possible. 

What is the Office of the Public Guardian? 

The Office of the Public Guardian (OPG) is a government body responsible for supervising Deputies and helping protect people who lack mental capacity. Although the Court of Protection and the OPG work within the same legal framework, their responsibilities are different. 

The Court of Protection makes legal decisions, appoints Deputies, defines their powers and resolves disputes. Whereas The Office of the Public Guardian supervises appointed Deputies, monitors whether they are fulfilling their responsibilities and investigates concerns about their conduct. 

Deputies are generally required to submit annual reports explaining the decisions they have made and how they have managed the person's finances. 

The OPG reviews information about income, expenditure, assets and financial transactions to help ensure Deputies are acting appropriately and in accordance with their court orders and the OPG Deputy Standards. It can also investigate concerns about financial abuse, neglect, conflicts of interest or a Deputy's failure to meet their responsibilities. 

Where necessary, the OPG can apply to the Court of Protection for further action, including the removal of a Deputy. However, the decision to remove a Deputy rests with the court. 

These safeguards are important because being appointed as a Deputy does not give someone unrestricted control over another person's finances.

Regaining mental capacity after a brain injury 

One of the important topics discussed during the question-and-answer session was whether someone who has a Deputy can regain control of their own financial affairs. 

A Deputyship does not necessarily have to remain in place permanently. 

Following a brain injury, someone's abilities may improve over time, although recovery and changes in mental capacity will depend on their individual circumstances. If a person believes they have regained the capacity to manage their property and financial affairs, the first step will generally be to obtain an updated mental capacity assessment. 

Shareen explained that this assessment could be arranged with the support of the existing Deputy. Alternatively, the person concerned may choose to seek their own assessment. 

If an updated assessment indicates that the person has regained capacity to manage their property and financial affairs, an application can be made to the Court of Protection to discharge the Deputyship. 

The court will consider the evidence and may request further information or an additional assessment before making its decision. Until the court makes an order ending the appointment, the existing Deputy must continue to fulfil their legal responsibilities. 

This means that where someone disagrees with their Deputy about whether a Deputyship is still necessary, there may be steps they can take to have their circumstances reconsidered. 

What happens when people disagree about a best interests decision? 

Another question raised during the session concerned what happens when someone disagrees with a proposed decision, particularly one involving a significant change such as moving home. 

Shareen explained that best interests meetings provide an opportunity for the person concerned, their family members and relevant professionals to discuss the available options. The purpose is to understand the person's wishes and feelings, consider the circumstances, and identify what may be in their best interests if they cannot make the decision independently. 

Where a person has capacity to make the relevant decision, it is their decision to make. 

If they lack capacity, they should still be involved in the process as much as possible, and their views should be considered. 

Sometimes everyone involved will agree on the appropriate course of action. In other cases, differences of opinion may remain. 

Where a significant disagreement cannot be resolved, the Court of Protection may be able to consider the matter and make a decision. However, not every disagreement will require court involvement, and the appropriate next steps will depend on the nature of the decision and the circumstances involved. 

The important point is that lacking capacity to make a particular decision does not mean a person's wishes should be ignored or that they lose the right to be heard. 

Can more than one Deputy be appointed? 

During the discussion, Shareen also addressed whether two or more people can act as Deputies for the same person. 

The Court of Protection can appoint Deputies to act either jointly or jointly and severally. 

• Joint Deputies must make decisions together. One Deputy cannot independently make a decision where the court order requires both to act jointly.
• Joint and several Deputies may be able to make decisions independently of one another, depending on the powers granted by the Court. 

Shareen explained that this can sometimes involve a family member working alongside a Professional Deputy. 

For example, a family member may be closely involved in the person's everyday circumstances, whilst a Professional Deputy helps manage more complicated financial arrangements, such as investments or a substantial compensation settlement. 

This arrangement can help ensure that everyday needs are understood and addressed whilst more complex financial matters receive appropriate professional support. 

Supporting independence and protecting people's rights 

Throughout the presentation, Shareen emphasised the importance of communication, involving the person in decisions and understanding their individual needs. 

Although a Deputy may be appointed because someone lacks capacity to manage certain financial matters, the intention is not to take away more independence than necessary. 

For individuals and families already managing the effects of a brain injury, ongoing rehabilitation, care arrangements and financial responsibilities can involve several professionals and important decisions. 

Shareen also highlighted that a Deputy should help reduce some of the practical and financial responsibilities individuals and their families may be managing, particularly where there are ongoing legal proceedings, rehabilitation needs or several professionals involved in someone's care. 

This can allow families to focus more of their time on supporting their loved one, whilst ensuring financial matters are appropriately managed. 

The Mental Capacity Act, Court of Protection and Office of the Public Guardian provide a framework designed to balance necessary protection with respect for people's rights, wishes and independence. 

Watch Shareen Tanvir's full presentation with The Silverlining Brain Injury Charity 

We would like to thank The Silverlining Brain Injury Charity for inviting Shareen to speak at its October mid-month meeting and for providing an opportunity for members to ask questions and share their experiences. 

The session offers further insight into mental capacity assessments, best interests decisions, the responsibilities of Deputies and the options available to people who may regain capacity following a brain injury. 

How Simpson Millar might be able to help following a brain injury 

At Simpson Millar, our specialist Court of Protection team supports individuals and families with a range of matters involving mental capacity, Deputyships and the management of property and financial affairs. 

We understand that every person's circumstances are different, particularly where a serious brain injury or other condition has affected their ability to manage important decisions. 

Our solicitors can provide advice and support with applications to appoint a Deputy, ongoing Deputyship responsibilities and matters involving the management of compensation settlements and other assets. 

We can also act as a Professional Deputy through Simpson Millar Trust Corporation, which can be appointed by the Court of Protection to manage someone's property and financial affairs. This may be particularly helpful where financial arrangements are complicated, substantial compensation funds need to be managed or family members would prefer a professional to take on these responsibilities. 

Our team can work alongside families, carers and other professionals to help ensure financial decisions are made in the person's best interests, whilst involving them in decisions as much as possible. 

Whether you are considering applying to become a Deputy, need support with an existing Deputyship or would like advice about changes in someone's mental capacity, our team may be able to help. 

Contact our Court of Protection team to find out more about the support available.