Determining client capacity and a deputy’s role
The legal process that goes into determining capacity all stems from The Mental Capacity Act 2005. This Act also provides a detailed framework that is designed both to empower and protect vulnerable people; the philosophy behind the legislation being that those who suffer a disability shall be assisted to live normal lives and make as many choices about their lives as possible.
Section 2 of the Mental Capacity Act sets out the definition of capacity as:
“a person lacks capacity in relation to a matter if, at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in, the functioning of, the mind or brain”.
The matter of whether someone has capacity is therefore individual, time and issue-specific.
The five key principles when determining capacity
It is also important to have in mind that the Act is very much intended to enable incapacitated people and (as Section 1 of the Act requires) the following five guiding principles apply:
- a person must be assumed to have capacity unless it is established that he lacks capacity;
- a person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success;
- a person is not to be treated as unable to make a decision merely because he makes an unwise decision;
- an act done, or decision made, under the Act, for or on behalf of a person who lacks capacity must be done, or made, in his best interests;
- before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Before incapacity can be determined, Section 3 of the Act sets out that it is necessary to show that the individual is unable:
“(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision; or
(d) to communicate his decision (whether by talking, using sign language or any other means)”.
How deputies should help to make decisions for someone who lacks capacity
Making a decision in the best interests of the incapacitated person is a principle enshrined in the Mental Capacity Act. Whilst there is no definition of “best interests” there are guidelines of what to consider when deciding what these might be. These guidelines are set out in Section 4 of the Act.
First and foremost, the deputy must consider all relevant circumstances and, “so far as reasonably practicable”, permit and encourage the individual and appropriate others (family, carers) to be involved in the decision-making process. A Code of Practice is also set out in the Act, and deputies have a legal duty to follow this code; paying close attention to the five statutory principles (mentioned above) when making decisions.
Furthermore, all deputyship orders make it quite clear that, although they may have wide powers to manage all of the person’s financial affairs, under no circumstances can a deputy make a decision on a matter where the individual has the capacity to make his/her own decisions. To do so would be to render the deputy’s decision invalid.
How it works in practice
In practice, the deputies must meet with an individual, analyse and reflect on whether they can make the decision themselves and, if not – taking into account the circumstances and views of the individual and those close to them – make a best-interest decision. This process can be (1) complex and (2) requires proper time allocated to it; especially with brain injury survivors where meetings tend to take longer due to the need for regular breaks, prompting, and taking stock of whether the client and family members are following the discussion.
In our experience, some individuals will lack capacity concerning all of their financial affairs but others retain some capacity (you can find out more about a financial deputy’s role in our guide here). It is for the deputies to establish the areas of capacity and the extent to which the client can make decisions themselves, and ensure that they do not trespass there. This requires time to be spent getting to know the client and developing a trusted relationship.