The Role of the Public Guardian and the Court of Protection

The Mental Capacity Act 2005 is now fully in force. The starting point for the Act is that adults have the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise. It emphasises the importance of taking all possible steps to help someone make their own decisions, before concluding that they lack the capacity to do so. It also states that each decision made or act done on behalf of a person who lacks capacity must be in their best interests and should not restrict their basic rights and freedoms unnecessarily.
The Act provides protection for carers and professionals working with people who lack capacity, who comply with its provisions. It sets out new options for people who want to plan ahead, enabling them to appoint someone they trust to make decisions should they lack capacity at some time in the future. It also clearly sets out the law on advance decisions to refuse treatment.
The Act gives further protection to vulnerable people by introducing a new criminal offence of ill treatment or wilful neglect of someone who lacks capacity.

The Office of the Public Guardian
A new position of Public Guardian has been created, supported by an Office of the Public Guardian (OPG).
The creation of a statutory role of Public Guardian means that, for the first time, there is an office holder with specific statutory powers and duties to supervise and regulate those appointed to make decisions on behalf of those who cannot do so themselves. The OPG is responsible for:

The provision of administrative support to the Public Guardian;
Establishing and maintaining a register of lasting powers of attorney (LPA);
Establishing and maintaining a register of enduring powers of attorney (EPA);
Establishing and maintaining a register of orders appointing deputies;
Supervising deputies appointed by the Court of Protection;
Maintaining and ensuring compliance with the Code of Practice by deputies.

The OPG’s Customer Contact Centre is the first port of call for any issues relating to mental capacity, LPAs, deputyships and the Code of Practice. It will provide information on the role of the OPG and the Court of Protection, and about other organisations and agencies that might be able to provide further, more specialised, help and advice. It will also deal with straightforward enquires from deputies, and with complaints relating to the delivery of services by the OPG.

Court of Protection
The new law also establishes a new Court of Protection to deal with all aspects of the Act. The Court has the power to decide if someone lacks mental capacity and, if they do, to decide an appropriate course of action to deal with that person’s property and affairs, and personal welfare. The Court of Protection is a superior court of record and has a judiciary led by the senior judge and includes district judges. The relationship between the Court of Protection and the OPG is different from that between the previous Court and the Public Guardianship Office. The new Court is the decision maker, while the OPG has a regulatory role.
The Court remains based at Archway, but to ensure greater accessibility, there are now six regional centres with judges nominated to undertake Court of Protection work. These regional centres are based in Preston, Birmingham, Bristol, Manchester, Cardiff and Newcastle.

The work of the Court
The new Court is the final authority for matters relating to mental capacity and has the ability to appoint deputies, which replace and extend the previous system of receivership. Deputies will be able to make decisions on welfare, healthcare and financial matters, as determined by the Court. However, deputies will only be appointed if the Court cannot make a one-off decision to resolve the issues.
In most cases relating to personal welfare matters, the core principles of the Act will be enough to help people to take action or make decisions in the best interests of someone who lacks capacity to make decisions about their own care or treatment, or to find ways of settling disagreements about such actions or decisions. But, of course, there will be circumstances where an application to the Court is required. These will be when there are disagreements that cannot be resolved, complex or difficult matters, or when ongoing decisions are needed about the personal welfare of the person who lacks capacity to make decisions for themselves.
The Act also provides the Court with powers to make a declaration on whether a person has the capacity to make a particular decision, or whether a particular course of action is lawful or not. Most of these decisions will be decided informally without the need to come to Court, but when there are disagreements between medical experts, family disputes or if there are doubts whether a course of action such as medical treatment is in the person’s best interests, then a Court decision may be necessary.
Whenever it makes an order, the Court must apply the statutory principles and follow the best interests checklist set out within the Act. The Court is required to always make the least restrictive order possible and must consider making the decision itself instead of appointing a deputy decision maker and when appointing a deputy, limiting the extent of their powers and the length of their appointment as far as possible.
The Court has its own dedicated administrative staff with responsibility for processing applications to the court, listing cases for hearing, issuing orders and liaising with regional centres and the High Court, and preparing case files where cases are to be heard other than at Archway.
Where an attended hearing is required it will be held at the most onvenient regional centre taking into account ease of access and available timescales, although administrative work and record keeping will be through the court’s central registry at Archway.
The Court can call for evidence it requires to hear a case, and applicants to the Court will be able to file evidence with their application. It has the power to send Court of Protection visitors to interview applicants, parties and persons who are subject to a case before it, and ask them to make a report to the Court.

Deputyship
Unlike receivers, deputies will be appointed under the principles of the Act, which will mean some major differences. The assumption of capacity in the Act means that any decisions should only be made where the client is unable to make them themselves and that any act done or decision made on someone else’s behalf must be done in their best interests. Any assessments of capacity are also to be done on a specific decision basis only. This is a big step away from the previous approach.
Deputies will only be appointed where there are a number of ongoing or complex decisions to be made on the client’s behalf. The concept of appointing decision makers for personal welfare matters is another new area. It is expected that personal welfare deputyships will make up only a small minority of the overall decision makers appointed by the new Court. When the Court appoints a deputy to manage someone’s affairs, the Public Guardian will have a monitoring role to help ensure the deputy acts within the scope of the powers given and acts in the best interests of the person in respect of whom they are appointed.
The OPG will supervise deputies appointed by the Court and also provide information to help the Court make decisions. It will provide safeguards for clients and assess and manage risks. A specialist supervision team will carry out an initial assessment and allocate deputies to a supervision regime. There are three levels to the supervision regime, which are Type I (close supervision), Type II (lighter touch) and Type III (minimal). These regimes are intended to enable OPG monitoring activities to be set at a level that is suited to the circumstances of each case.
When the Court does appoint a deputy, because there are ongoing requirements for decisions to be made, the deputy could be appointed to make decisions about personal welfare, or financial affairs or both. But the court will only usually appoint a deputy for personal welfare in the most difficult of cases and where there is no other way of making decisions. This may be the case when there is a history of family disputes or where the person is at risk of serious harm.
When it comes to purely financial matters, the court will appoint a deputy in similar circumstances to those in which it would have appointed a receiver in the past.

Lasting powers of attorney
An LPA enables individuals to plan head and express preferences about their finances and, for the first time, their health and welfare. LPAs replace the previous system of EPAs, which only allowed people to appoint an attorney to make property and financial decisions on their behalf. The new LPAs give more protection and extra options. There are two types of LPAs:

A property and affairs LPA; and
A personal welfare LPA.

A Property and affairs LPA enables an attorney to make decisions on the donor’s behalf about things such as paying bills, collecting income and benefits or selling property (subject to any restrictions or conditions). Donors can appoint a property and affairs Attorney to manage their finances and property while they still have capacity as well as when they lack capacity.
A personal welfare LPA enables an attorney to make decisions on the donor’s behalf about things such as consenting to medical treatment or deciding where to live. These decisions can only be taken on the donor’s behalf when they lack the capacity to do so on their own.
Attorneys can only act in accordance with the type of LPA to which they have been appointed. An LPA must be registered, before use, in order to be valid.
The applications section, tasked with the registering of both LPAs and EPAs, will ensure that applications are validated in accordance with legislation; maintain the existing information on EPAs, including confirming donor deaths and closing files where appropriate; and provide support to both the donor and attorney. It will liaise with other parties when disputes arise to obtain relevant information, and will assist to resolve the dispute as efficiently as possible.

Raising awareness
The OPG is also responsible for increasing awareness of the MCA.The communications and marketing team, and the customer and stakeholder team are responsible for this. The customer liaison and stakeholder team is responsible for outreach work, running customer surveys, speaking at and attending various events and conferences, and building and maintaining existing relationships with stakeholders.
The communications and marketing team is responsible for ensuring the OPG website provides access to required information, such as forms and guidance and application packs, in addition to running various marketing and publicity campaigns.
The OPG also has responsibility for policy development and issues relating to the Mental Capacity Act and mental capacity issues in general.

The Public Guardian Board
Under the Act a non-executive board called the Public Guardian Board, was set up in June 2007. The board scrutinises and reviews the way in which the Public Guardian carries out his duties and makes recommendations to the Lord Chancellor. It has been operating in a shadow capacity since June, but as of the 1st October, it took on its full statutory role.

The Future
Richard Brook, the first Public Guardian and Chief Executive of the OPG acknowledged that there would be challenges faced in the future. At the OPG launch event he said, “I am delighted to be the first Public Guardian and chief executive of this new agency and I look forward to leading it through the challenges that lie ahead. I am personally committed to deliver a high-quality service to some of the most vulnerable people in our society.”

Ifediba Egwuatu is a member of the communications and marketing team at the Office of the Public Guardian.

To contact the OPG, telephone 0845 330 2900, e-mail customerservices@publicguardian.gsi.gov.uk or visit www.publicguardian.gov.uk