The Court of Protection has recently been called upon to make two decisions relating to fairly basic issues relating to the appointment of Deputies acting for persons who have lost mental capacity and communication between Deputies and other family members.
The first decision related to the not uncommon situation of competing applicants. The most useful aspect of this case was the acceptance of a basic position that where there are competing applicants of broadly equal merit those with a closer geographical proximity to the person who as lost capacity are better placed to be that person’s Deputy. This reflects the fact that in discharging his or her duties a Deputy is required to maintain regular and routine contact with the person who has lost capacity. It also reflects the fact that in practice the person nearest will usually be the first point of call for professionals dealing with the care of the person who has lost capacity.
The second decision related to an application made by relatives who failed to notify two of the children of the person who had lost capacity. The application was discovered by the children who objected. The objection was upheld and the court refused to name the applicants as Deputies. This was perhaps and unsurprising result. The rules on the notification of family members place an emphasis on those who are close family relatives and the requirements are also set out in the application packs.
These cases serve to highlight the fundamental requirements of the Mental Capacity Act 2005 relating to Deputies and potential Deputies. Those with a legitimate interest in the welfare of a person should be kept informed and consulted of issues affecting the welfare of that person whether these be the application for Deputyship itself or matters relating to their care or medical treatment. Against that a right to consultation does not imply a right of veto or the ability of more distant (or less involved) family members to act as “back seat drivers”.