If a person is assessed to lack mental capacity to make decision about their financial or welfare matters, the Court of Protection may appoint a Deputy to make these decisions on their behalf.
A mental capacity assessment will identify if a cognitive impairment is present, and whether an individual is able to understand, retain, use and weigh up information specific to the relevant decision.
Complications in Cases Related To Regaining Capacity
Mental capacity and the decisions surrounding what support an individual requires, are extremely complex. An individual might, for example, have mental capacity to make some decisions, and not others. Mental capacity to make decisions about property, financial affairs or welfare can fluctuate over time depending on the wider health or social circumstances of the individual. Mental capacity can also be fully regained, following a period of rehabilitation.
The Mental Capacity Act creates a presumption of capacity, that must be rebutted before an individual is treated as being unable to make a particular decision. In addition, all practicable steps to help an individual to make an autonomous choice must also be implemented before a specific freedom is taken away.
What Happens When a Person Regains Mental Capacity?
In circumstances where a person regains mental capacity to make a specific decision, it may no longer be appropriate for a Deputy or Attorney to act on their behalf. The Deputy or Attorney must take steps to either encourage autonomous decision-making for a specific issue, within the remit of their order/granted powers or look to discharge the Deputyship order/Lasting Power, to end their involvement.
In order to discharge a Court appointed Deputy, medical evidence will need to be provided detailing the mental capacity prognosis of an individual. If the medical evidence confirms that an individual has regained capacity a formal application to the Court of Protection can be made to discharge a Deputy and their powers. A similar process can be followed for Attorneys. The Court will then consider the application and supporting medical evidence and, if satisfied that the person has regained capacity, the Court can make an order discharging the appointed Deputy.
Sometimes, there is a dispute about whether capacity has been regained and medical professionals might not agree on the mental capacity prognosis. Our team is well-versed in supporting the resolution of complex mental capacity disputes and we have extensive experience in guiding clients through the process of securing and updating medical evidence.
