Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department.

  • Great Britain. Lord Chancellor's Department
Date:
1997
Catalogue details

Licence: Open Government Licence

Credit: Who decides? : making decisions on behalf of mentally incapacitated adults : a consultation paper / issued by the Lord Chancellor's Department. Source: Wellcome Collection.

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    The Government accepts this recommendation in principle, but has some concerns about whether such a scheme might be open to abuse. Q13a. Are additional safeguards required to ensure the “necessaries” rule does not lead to abuses? Q13b. If so, what additional safeguards might be incorporated? A release of payments scheme The Law Commission suggested a means of ensuring that those caring for a person without capacity can have access to funds to deal with the day-to-day necessities required without continual recourse to the courts. This would enable banks, building societies etc. to make arrangements with carers, once carers had demonstrated that the person in their care did not have capacity. Responses to the Law Commission suggested that an accessible system of this type was needed by carers who otherwise faced delay, cost and lack of legal protection. The Law Commission suggested that, on receipt of certification from a medical practitioner that the person concerned did indeed lack capacity, companies might make limited contractual arrangements with a third party for withdrawals on behalf of the person without capacity. Such a provision would be particularly useful where the person without capacity had not indicated a person they would wish to handle their affairs in advance of their incapacity. There would be no compulsion on companies or their depositors to participate in the scheme. A release of payments scheme of this nature would be accompanied by a provision to the effect that, if an institution releases payments in accordance with the terms of the scheme, then the institution will be protected from liability to its customer without capacity for having done so. The Law Commission recommended that the protection would not be available where the customer has opted out, by instructing the institution not to enter into such an agreement, nor will it be available where the original customer, at any time when the agreement is in force, informs the institution that a payment is not to be made. Nor should the institution benefit from the protection from liability if there is reasonable cause to believe that the recipient is likely to misapply the money received. The Law Commission proposed a number of safeguards, namely that: the recipient must acknowledge that he or she: (1) understands the obligation to apply any money in the best interests of the original customer; and (2) is aware that civil or criminal liability may be incurred if the money is misapplied; and (3) is not aware of any other person who has authority to receive the money; there would be a financial limit of £2,000 per year (although this would apply per individual agreement); the company would not be protected if the maximum amount was breached; the appointments would be time limited for two years; and
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