What Should A Deputy Do When Someone Who Lacks Capacity Requests Expensive Items?

Mental Capacity Act

When a person has been deemed to lack the mental capacity to deal with their property and financial affairs, a deputyship order can be made by the Court of Protection to appoint a deputy to take charge of making such decisions on behalf of the person (known as a protected party). However, the protected party might still be able to make some decisions for themselves as mental capacity is decision-specific. Sometimes, the protected party may want their deputy to help them purchase something expensive using their own funds.

Section 1 of the Mental Capacity Act 2005 (MCA 2005) provides a set of principles that the deputy must consider when determining whether a protected party has sufficient mental capacity to make a decision. Just because a deputy has been appointed doesn’t mean that a protected party can’t make a decision about making certain purchases e.g. spending £20,000 to extend their property or buying jewellery. Although there are limits in deputyship orders that must be adhered to, and an application should be made if a protected party or a protected party’s deputy wish to go beyond those parameters.

To have the capacity to make their own decision, a protected party needs to be able to convince their deputy, and often the Court of Protection also, that they can:

• Understand the information about the item or service including what it is, how much it costs, what it is for, how much money they have;
• Hold onto that information long enough to be able to make a decision;
• Weigh up all the available information to make a decision; and
• Communicate their decision to their deputy.

If the decision they make is slightly unwise, this does not render it invalid. If unfortunately, a protected party does lack the mental capacity to make the decision, their deputy will need to make the decision for them by considering the following:

• The value of the protected party’s estate and income to see if they can afford it;
• The protected party’s level of care and expected life expectancy which could limit the amount of available funds for non-vital expenditure;
• Value of the item or service including any ongoing related costs;
• Purpose of the item or service;
• The intended recipient of the item if not the protected party or who may benefit from the item;
• Where the proposed transaction sits with the protected party’s usual spending habits before losing mental capacity; and
• The protected party’s wants and wishes, especially if written down before they lost mental capacity.

If the protected party has a large estate and a large family but a small house, it could be reasonable and acceptable to approve a request for a home extension compared to someone who has less funds and lives alone. Similarly, it could be reasonable to reject a sudden request to buy an expensive yacht if a protected party has no use for it and doesn’t have anywhere to store it.

Gifts

If a protected party wants to make an expensive gift to someone else, the deputy will need to be careful in checking whether the Court Order for the deputyship allows for it, including making donations to charity. There are specific rules and set criteria when considering what gifts of value can be made and in what circumstances. Making gifts that are not authorised could be deemed as misuse of funds and lead to an investigation by the OPG and possibly even criminal charges.

Accounting to the OPG

It is vitally important to keep financial records for a protected party’s funds so that an account can be made for the OPG to review. A clear set of records will provide clarity should there be any doubt as to where a protected party’s funds have been spent.