Mental capacity is not always something you have or have not got. It is something very specific in relation to the very decision to be made according to the time, place and surroundings.
Just because somebody needs help under a Power of Attorney or Court of Protection Order this does not mean that they should not continue to be involved in the decisions being made about them. The principles of the Mental Capacity Act 2005 very clearly set that out.
Often it is necessary to make an application to the Court of Protection on a specific issue to seek authorisation or ask the Court to determine what is in the best interests of the person. The Court continuously recognises the need for the person in question to be involved in these proceedings.
On 14 November 2016 the Vice President of the Court of Protection, Mr Justice Charles, issued practical guidance on facilitating the participation of the person who lacks capacity and vulnerable persons in Court of Protection proceedings.
Whilst the guidance is primarily directed towards health and welfare cases it is hoped that this will also be of assistance in property and affairs cases. The guidance is an attempt to assist those representing vulnerable adults as well as other parties in Court of Protection proceedings by making suggestions of how the vulnerable adult can participate themselves in proceedings.
The suggestions include:
• identifying the persons needs within the Court process and in particular their best interests;
• expressing the persons wishes and feelings on the issues to be determined by the Court;
• establishing whether the person wishes to attend the hearing and the list of factors that should be considered if they wish to do so, including the impact on them given the procedures;
• the approach to be taken if the person wishes to meet with the Judge
It is hoped that this guidance will assist practitioners, advocates and carers by providing a framework and suggestions for consideration.
For a free initial chat about this and other issues relating to managing the welfare and finances of those lacking capacity, call us today on 0800 088 6004