One of the main aims of the Mental Capacity Act legislation is to provide a single framework for financial and welfare decision making. Decision making principles, tests of capacity, court forms and rules are all harmonised to support the full range of a person’s needs. In practice however, there are still two distinct realms, and most deputies are appointed with powers limited to making decisions concerning property and finance. A standard order appointing a deputy will authorise an individual to make decisions on behalf of a person who lacks capacity to make decisions in relation to his or her property and affairs. The order goes on to confer ‘general authority on the deputy to take possession or control of the property and affairs of’ the person who lacks capacity. The deputy has no powers to make decisions pertaining to welfare and is not expected to be involved in welfare related matters. At the same time, decisions relating to property and finance are often impossible to disentangle from a person’s welfare. The former serves the latter as resources have to be managed to promote physical care and wellbeing which is particular to the needs, wishes and character of a specific individual. The paradigm example of the bond between property and welfare is when decisions need to be taken concerning a person’s home. While the property is an asset, that may need to be looked after, repaired, or sold, it is also a home of memories and attachments. A decision to sell a property is not just a question of value and resource management, it also depends on a separate, if related decision as to where a person should live.

The court as well as the deputy is often involved in two separate processes which cannot be separated. Thus the court will not permit a deputy to sell a property unless satisfied that the decision of where to live has been fully considered. Even where the person has capacity to decide where to live and understands that the property is to be sold, this still needs to be explained and accounted for in evidence. If the person has already moved to a care home and lacks capacity to decide whether or not they should be accommodated there, then the Deprivation of Liberty Safeguards provide a further and essential safeguard that capacity and best interests have been fully considered. Where there is an objection to the proposed decision, and the person wishes to return to their home, then a lengthy court process may be needed to resolve the issue.

Where the person is in a care home, this is likely to lead to an application by the relevant person’s representative (RPR) for orders under section 21A MCA 2005. The Court of Protection can also be asked to make a decision under section 16 to determine where the person lives. Whichever procedure is followed, there is likely to be a lengthy court process, with the Official Solicitor often acting as litigation friend for the person whose welfare is at stake.

Financial deputies have to contend with a new area of law and procedure. An application may have been made to appoint a financial deputy, or the deputy may already be in place. There is then a dispute over where the person who lacks capacity should live. and, subsequently, another application is made for a welfare order, which in turn will determine whether the person’s property can be sold. The financial deputy may or may not be aware of this, but cannot take steps to sell the property unless and until the welfare issue has been determined. The same scenario can play out in reverse, where welfare proceedings are commenced to resolve the question of residence during which it becomes evident that there is property that needs to be administered. At that point, the judge dealing with the welfare proceedings may appoint a financial deputy, most often on an interim basis, to manage the estate while the welfare proceedings are played out. And in either case, the financial deputy needs to protect the property and make funds available or at least provide evidence of funds to assist with the welfare proceedings. These may be delayed further while the one hand works out what the other is doing, as choices concerning where or how a person lives will be determined by the resources available. A person may wish to live at home but there are insufficient resources to repair, adapt and maintain the property. The person may require full time care at home but the local authority will only cover a contribution. If a lifetime mortgage is required to meet a funding shortfall then financial advice is needed and the financial deputy needs authority to enter into a charge.

It can be hard to navigate the separate but connected realms of property and welfare, which work in the same jurisdiction but with different procedures, parties and representatives. The financial deputy needs to be especially careful – and tactful – to represent a person’s financial interests and assist the court with its best interests determination without becoming a protagonist. There is a risk as well that if the financial deputy is directly engaged in a welfare matter then the right to recover costs for this work may be limited on assessment. The financial deputy needs to be kept informed and while often not a party to the welfare proceedings should be recorded as a person to be notified. Where the financial deputy has had any significant involvement then the court should be asked to direct that costs incurred should be assessed.

The financial deputy should also be able to intervene and apply for specific authority or even a final order to deal with property. There may however be reluctance on the part of regional judges to make orders relating to property, as property and affairs applications are usually dealt with by the judges at First Avenue House. It cannot however be a good use of resources, either public court resources or those of the person who lacks capacity, for a decision about where a person lives to be made in one part of the court which is then used as evidence to support an application in another part of the same court to sell the person’s property. The court dealing with the welfare decision is able to make a final order for the financial deputy, to include the setting of security and should do so in line with the overriding objective of enabling the court to deal with a case justly and at proportionate cost. It is for the financial deputy to provide the court with any further information it needs, including details of the estate, and if requested, a draft order. This can, all being well, be sent to the central registry in London for issuing.

This can be a convoluted and slow process which demonstrates the concern the court has for making difficult decisions for people concerning their fundamental rights. It is not unusual for events to determine the outcome. At the end of the long process, poor health, resignation to new surroundings or even death provide their own conclusion. Whether the effort and expense – both public and private – are necessary or sustainable given the pressures on resources and an ageing clientele are considerations for another time. For now, practitioners need to work within the existing structures using their own skills to be involved at the right time and to the right degree. That in turn requires an awareness of the full jurisdiction and making use of the resources and expertise available from the PDF and its membership.

Martin Terrell, PDF Director, Partner Warners Solicitors