Lacks mental capacity?

williewonder

Would somebody who has had a capacity assessment ruling they lack mental capacity over finances when mentally unwell but has capacity when well mean that to safeguard them they'll have appointee in place and the unwell period overwrites the well periods and this person can be a danger to themselves? Does this make sense?

NottinghamKnight

Not really. I can't see how it can be determined when the person has capacity or not, how would this be determined, especially in hindsight.

pramsay13

I imagine that whoever is appointed would need to be trusted by the person to make a judgement call on how well or unwell the person is.
Is the person aware they are unwell and comfortable with someone else taking over at that point?

Nebulous2

I'm in Scotland, which may be different, but systems don't always deal well with lasting incapacity, nevermind variable capacity. 

Can you give us a brief anonymised sketch of the situation and what you are trying to achieve? Does the person agree the safeguards are necessary and are they willing to work within them? Talking about danger to themselves may take it well beyond just capacity over finances. 

jbuchanangb

The government web site https://www.gov.uk/become-deputy sets it all out quite well.

Ken68

Is this the same as Power of Attorney ?

jbuchanangb

A person has to have mental capacity in order to appoint an Attorney, i.e. they must understand all the forms they are filling in and what they are doing, and this must be verified by someone independent. If you have reached the stage that a person no longer has mental capacity for their financial affairs, it is unlikely that they will have mental capacity to appoint an Attorney using a Lasting Power of Attorney. In this situation it is incumbent on someone close to them to apply to the Court of Protection to be appointed as a Deputy.
The Court Order is then accepted by banks and financial institutions as the authority of the Court appointed Deputy to deal with the person's financial affairs. My wife had to do this a few years ago for her sister, who was happily signing blank cheques and giving them to all and sundry. 

Retired_Minky

Court of Protection order is what you need. It’s similar to Power of Attorny but for people that are incapable of making that decision. 

You can get COP for finance and health. They are two separate orders. 

You can go through the process yourself but recommend a solicitor. 

elsien

If the person has capacity when well, they could make an LPA when they are well enough to do so, so it’s there ready to kick in when they unwell. Unless, of course, they don’t want an LPA.
With regards to an appointee, that’s diffferent because it relates to benefits. It would not give permission for the person’s bank accounts to be accessed, for example. It’s hard to get rid of an appointee once one is in place. But as far as DWP is concerned it’s either there or it’s not, and if there is an appointee DWP will only deal with them not with the person.
Fluctuating capacity is difficult. The CoP process mentioned above would cease when the person regained capacity so ineffective in the long run. CoP also takes months and has an ongoing cost implication so it’s not worth it unless someone has money/assets to deal with. Especially if there’s a chance that by the  time it got to court the person would be well again anyway. 

I’d suggest LPA if the person agrees and is well enough. 

MalMonroe

It really does depend on who is actually making the judgement, doesn't it? And is it just the one assessment or a few? Surely you'd need more than one assessment at different times to be able to state whether or not a person 'has mental capacity over finances' - or anything else for that matter. 

I guess everyone could be judged as 'mentally incapable' at some point or other in their lives.

I'm really curious to know who is judging who here, and more importantly, why? And also, how dare they?!

elsien

Capacity is time and decision specific with the presumption that the person has capacity unless evidenced otherwise. If the person was in a mental health unit (for example) and was seriously unwell then the consultant in charge of their care would carry out the assessment. 

Often as a safeguarding issue and to ensure the person is protected until they are well again. But it’s unlikely that any one would look at appointees or deputyships  unless it seemed there was little chance of the person regaining capacity in the longer term. 

Not sure what you mean, how dare they. If you were giving all your money away and getting horribly in debt because of delusions (I knew one person who was on the verge of being evicted because they were convinced a mystery benefactor was paying their rent so they didn’t need to) would you not want some safeguards in place temporarily?