If you lack capacity to make treatment or care decisions and you haven’t made an Advance Decision (Living Will) or a Lasting Power of Attorney for Health and Welfare (LPA) then the doctor in charge of your care will usually make these decisions on your behalf.
However, if ongoing decisions need to be made about your treatment or care, someone close to you can apply to become a Court Appointed Deputy, or an Independent Mental Capacity Advocate may be appointed.
Court Appointed Deputies
If there are ongoing decisions that need to be made about your treatment or care, someone close to you can apply to the Court of Protection to be appointed as your deputy. They can only do this if you haven’t made an LPA.
A deputy has the legal power to make specific decisions about your care. They must be over 18 and are usually a family member or friend.
Becoming a deputy
The person who wishes to become your deputy must make an application to the Court of Protection. If their application is successful the Court will issue a court order that gives them authority to act on your behalf and states the types of decisions they are legally allowed to make.
The Court will only give the deputy power to make decisions about specific issues. This is because the deputy is appointed after you lose capacity and you haven’t chosen this person yourself.
What decisions can a deputy make?
The decisions your deputy can make will depend on your needs and particular circumstances. A deputy can only make a decision that the Court has given them the power to make. So, for example, they can’t make a decision about your treatment if the Court has only given them the power to make a decision about your care arrangements. A deputy can never be given the power to make a decision about life-sustaining treatment.
A deputy must always make decisions in your best interests.They must also do as much as possible to help you make a decision for yourself if you can.
Welfare deputies are appointed relatively rarely. This is because the Mental Capacity Act (MCA) states that if a serious decision needs to be made about a person’s welfare, then a decision by the Court of Protection is better than appointing a deputy.
For more information about deputies please contact the Court of Protection.
Independent Mental Capacity Advocates
An Independent Mental Capacity Advocate (IMCA) will represent you if you lack capacity and a decision needs to be made about serious medical treatment, but you don’t have anyone close to you that can be involved in decisions. The MCA created this role to make sure that people who lack capacity are represented in decisions about their care or treatment.
What does an IMCA do?
The role of an IMCA is to support and protect the rights of people who have nobody else to speak for them. An IMCA won’t be the person that makes the final decision, but it’s their role to gather and present any information that will help the decision-maker (for example your social worker or doctor) to act in your best interests.
The IMCA will try to find out what your wishes and feelings are, and make sure your values or beliefs are taken into account when a decision is made. They should ask questions on your behalf, make sure that your rights are upheld, and check that the decision-maker has acted properly. They can also challenge any decisions made which they feel aren’t in your best interests.
Your local authority or NHS organisation is responsible for making sure that there are IMCAs available to represent people who lack capacity.