As Part of National Road Victim Month, Robyn Mayoh, Court of Protection Solicitor at Ramsdens has been looking at the impact of injuries on decision making.
Injuries that are sustained as a result of road traffic accidents are often life changing. Fortunately, in the majority of cases, people are able to make a good recovery but for some this is not always the case. Whilst whiplash injuries generally affect a victim’s physical ability to carry out everyday tasks for a period of time, acquired brain injuries can leave a lasting impact upon a victim’s mental capacity to make decisions about issues such as finances, care, contact and residence.
The Mental Capacity Act 2005 indicates that a person lacks capacity to make a decision if they are unable to understand, retain, weigh up or communicate information relating to the decision at hand.
If a person lacks capacity to make a decision (and they have not previously made an advanced decision or appointed an Attorney under an Enduring or Lasting Power of Attorney) an application can be made to the Court of Protection for a Deputy to be appointed for either property and financial affairs, or, health and welfare. It would then be the Deputies’ responsibility to make decisions in the best interests of the vulnerable person.
Whilst Financial Deputies are becoming increasingly common, Personal Affairs Deputies remain few and far between. In the absence of a Court Appointed Deputy, best interests decisions can be made on behalf of a person that lacks capacity in relation to health and welfare issues in accordance with the principles of the Mental Capacity Act 2005 and the associated Code of Practice. If a decision has to be made about a vulnerable persons care package or residence, the local authority or relevant healthcare trust may hold a best interests meeting where family members and professionals get together to consider all available options before a decision is made. Once a decision has been made it must be recorded. If the decision is not reached by the agreement of all parties, it can be challenged by an application being made to the Court of Protection. Means tested legal aid funding is available for these applications in Court.
If you would like more information about how to apply to become a Court Appointed Deputy or require legal advice in relation to a capacity issue please contact our legal experts now on 01484 821 500, email willsandprobate@ramsdens.co.uk or text LAW to 67777 to book a free information session at any of our offices.