The turkey is in the oven and the lights are on the tree. For many people, Christmas is a time for family, joy and the occasional mince pie. For others the thought of the word Christmas induces a famous phrase we have all heard of “Bah Humbug!” Now, whilst most of us enjoy the festive period, I think everyone knows at least one Scrooge. Whilst watching one of my favourite Christmas films ‘A Christmas Carol' I began to think about Ebenezer Scrooge and his infamous overnight change from a mean old man shouting about the surplus population, to a man who throws open his window and shouts at the nearest young boy to go and buy the biggest turkey in the shop. What has caused this miraculous change in character or is there something a little more worrisome going on here?
Arguably Scrooge has undergone quite a traumatic experience, being visited by four ghosts and being shown the aftermath of his death. Potentially this may have left some long lasting side effects. Evidentially before the experience, Scrooge had long standing beliefs that go along the lines of every man for himself and was quoted as saying “Since you ask me what I wish, gentlemen that is my answer. I don't make merry myself at Christmas and I can't afford to make idle people merry". This change in behaviour is potentially suggestive that Scrooge is suffering an impairment of the mind.
So let's bring this story to the present day. What can the Court of Protection do to help and protect Scrooge? The legislation that governs the Court of Protection is the Mental Capacity Act 2005 (“The Act”). This statute only applies if P (the protected party) is deemed to lack capacity ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain'. Scrooge has no diagnosed conditions that would indicate a disturbance of the mind, but in current times if there was a suggestion that he lacked mental capacity then the first step would be to contact a medical professional to see if a capacity assessment could be completed to see if he does have capacity. Considering Mr Scrooge is now willing to spend his money on turkeys and charitable donations, when before the incident with the four ghosts he was a lifelong penny pincher, this could be something addressed in the assessment. The assessor could then determine whether Scrooge had the capacity to handle his financial affairs. Capacity is issue and decision specific therefore Scrooge may be deemed to lack capacity to manage his finances but have capacity in other areas of his life.
The five principles are outlined in the Section 1 of The Act. These are designed to protect people who lack capacity to make particular decisions, but also to maximise their ability to make decisions, or to participate in decision-making, as far as they are able to do so.
1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make unwise decisions.
4. An act done, or decision made, under The Act for or on behalf of a person who lacks capacity must be done, or made in their best interests.
5. Any act or decision made on behalf of P must be the least restrictive option available to the decision makers.
If Scrooge was treated as lacking capacity in 1845, the then legislation in England was enshrined in the County Asylums Act of 1808, which established institutions for poor and for criminally-insane, mentally ill people. The institutions were called asylums and they gave refuge where people with a mental illness could receive proper treatment. On the face of it, the decision to buy the biggest turkey and donate to charity may seem to be an incapacitous decision, but it may only be an unwise one and therefore does not mean Scrooge lacks capacity. Usually there would be a pattern of behaviour to indicate the lack of capacity.
Thankfully if Scrooge was deemed to lack capacity to manage his finances he would have a number of options available to him, with many professionals who could help. If Scrooge didn't have capacity then a family member could submit an application to the Court of Protection to be appointed as a Property and Affairs Deputy. The most likely candidate for a Lay Deputy (Lay meaning non-professional) would be a close family member, like Scrooge's nephew Fred, or maybe a close family friend such as Cratchit. Each decision made by the Deputy should be made in the best interests of P. Would it be in the best interests of Scrooge to allow him to spend his money on a family meal if it meant he had company at Christmas? That would be a question which the Deputy would have to consider.
Sometimes there are not any suitable people willing to step in to act as Deputy or in some circumstances it wouldn't be appropriate for a lay person to be Deputy. Here at Lanyon Bowdler we have our own highly experienced Court of Protection Team who work with and directly support many clients with ranging levels of input as their Professional Deputy. We understand the challenges involved with looking after a loved one who lacks capacity.
If you have concerns about someone who lacks, or may lack capacity, please contact our knowledgeable and friendly Court of Protection Team to discuss the issues you are facing and for advice on a way forward.
Merry Christmas from the Court of Protection Team and everyone at Lanyon Bowdler.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.