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Mental Capacity Act (Northern Ireland) 2016

Status:

This is the original version (as it was originally enacted).

Decisions and deputies

The court’s powers to make decisions and appoint deputies: general

113.—(1) This section applies if—

(a)a person (“P”) lacks capacity in relation to a matter or matters concerning—

(i)P’s care, treatment or personal welfare, or

(ii)P’s property and affairs; and

(b)P is 16 or over or section 115(3) applies.

(2) The court may—

(a)by making an order, make on P’s behalf a decision or decisions that P lacks capacity to make in relation to the matter or matters; or

(b)appoint a person (a “deputy”) to make decisions on P’s behalf in relation to the matter or matters (see further sections 116 and 117).

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1, 2, 5 and 7 (principles, best interests).

(4) When deciding whether it would be in P’s best interests to appoint a deputy, the court must (in addition to complying with section 7) have regard to the principles that—

(a)a decision by the court is to be preferred to the appointment of a deputy to make a decision; and

(b)the powers conferred on a deputy should be as limited in scope and duration as is practicable in the circumstances.

(5) The court may—

(a)make such further orders,

(b)give such directions, and

(c)confer on a deputy such powers or impose on a deputy such duties,

as it considers appropriate for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6) The court may make an order or appointment under any provision of this section, or give a direction under subsection (5), on such terms as it considers are in P’s best interests (even where no application is before the court for an order, appointment or direction on those terms).

(7) An order of the court may be varied or discharged by a subsequent order.

(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on a deputy if it is satisfied that the deputy—

(a)has behaved, or is behaving, in a way that contravenes the authority conferred on the deputy by the court or is not in P’s best interests; or

(b)proposes to behave in a way that would contravene that authority or would not be in P’s best interests.

Section 113 powers: care, treatment and personal welfare

114.—(1) The powers under section 113 as respects P’s care, treatment and personal welfare extend in particular to—

(a)deciding where P is to live;

(b)deciding what contact, if any, P is to have with any specified persons;

(c)making an order prohibiting a specified person from having contact with P;

(d)giving or refusing consent to the provision of a treatment by a person providing health care for P;

(e)giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.

(2) In this section “specified” means specified by the court.

(3) Subsection (1) is subject to section 117 (restrictions on deputies).

Section 113 powers: property and affairs

115.—(1) The powers under section 113 as respects P’s property and affairs extend in particular to—

(a)the control and management of P’s property;

(b)the sale, exchange, charging, gift or other disposition of P’s property;

(c)the acquisition of property in P’s name or on P’s behalf;

(d)the carrying on, on P’s behalf, of any profession, trade or business;

(e)the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

(f)the carrying out of any contract entered into by P;

(g)the discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not;

(h)the settlement of any of P’s property, whether for P’s benefit or for the benefit of others;

(i)the execution for P of a will;

(j)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

(k)the conduct of legal proceedings in P’s name or on P’s behalf.

(2) No will may be executed by virtue of subsection (1)(i) at a time when P is under 18.

(3) The powers under section 113 as respects any matter concerning P’s property and affairs (except the power to execute a will for P) may be exercised even if P is under 16 if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when P reaches 18.

(4) Schedule 5 supplements the provisions of this section.

(5) Subsection (1) is subject to section 117 (restrictions on deputies).

Appointment of deputies

116.—(1) A deputy appointed by the court must be—

(a)an individual who is 18 or over; or

(b)as respects powers concerning property and affairs, either such an individual or a trust corporation.

(2) The court may appoint an individual by appointing the holder for the time being of a specified office or position.

(3) A person may be appointed as a deputy only with that person’s consent.

(4) The court may appoint two or more deputies to act—

(a)jointly;

(b)jointly and severally; or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(5) When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—

(a)in specified circumstances or on the happening of specified events;

(b)for a specified period.

(6) A deputy is to be treated as P’s agent in relation to anything done or decided by the deputy within the scope of the deputy’s appointment and in accordance with this Act.

(7) The deputy is entitled—

(a)to be reimbursed out of P’s property for the deputy’s reasonable expenses in discharging the deputy’s functions; and

(b)if the court so directs when appointing the deputy, to remuneration out of P’s property for discharging them.

(8) The court may confer on a deputy powers to—

(a)take possession or control of all or any specified part of P’s property;

(b)exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.

(9) The court may require a deputy—

(a)to give to the Public Guardian such security as the court considers appropriate for the proper performance of the deputy’s functions; and

(b)to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.

(10) In this section “specified” means specified by the court.

Restrictions on deputies

117.—(1) A deputy does not have power to make a decision on behalf of P in relation to a matter unless P lacks capacity, or the deputy reasonably believes that P lacks capacity, in relation to the matter.

(2) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1, 2, 5 and 7 (principles, best interests).

(3) Nothing in section 113 or 114 permits a deputy to be given power—

(a)to prohibit a specified person from having contact with P;

(b)to direct a person responsible for P’s health care to allow a different person to take over that responsibility.

(4) Nothing in section 113 or 115 permits a deputy to be given powers with respect to—

(a)the settlement of any of P’s property, whether for P’s benefit or for the benefit of others;

(b)the execution for P of a will; or

(c)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.

(5)A deputy may not be given power to make a decision on behalf of P which is inconsistent with—

(a)a decision that is made in accordance with this Act by an attorney under a lasting power of attorney granted by P, and is within the scope of the attorney’s authority; or

(b)a decision that is made in accordance with the Enduring Powers of Attorney (Northern Ireland) Order 1987 by an attorney under an enduring power of attorney granted by P, and is within the scope of the attorney’s authority.

(6) A deputy may not refuse consent to the provision of life-sustaining treatment to P.

(7) A deputy may not deprive P of his or her liberty or authorise another person to deprive P of his or her liberty.

(8) A deputy may not do, or authorise another person to do, an act restraining P unless in doing so the deputy is acting within the scope of an authority expressly conferred on the deputy by the court and the deputy reasonably believes—

(a)that P lacks capacity in relation to the matter in question;

(b)that there is a risk of harm to P if the deputy does not do or (as the case may be) authorise the act restraining P; and

(c)that doing or authorising that act is a proportionate response to—

(i)the likelihood of harm to P; and

(ii)the seriousness of the harm concerned.

(9) In this section an “act restraining P” means an act (other than a deprivation of P’s liberty) which—

(a)is intended to restrict P’s liberty of movement, whether or not P resists; or

(b)is a use of force or a threat to use force and is done with the intention of securing the doing of an act which P resists.

(10) A deputy may not give consent to psychosurgery in respect of P.

(11) The Department may by regulations amend subsection (10) so as to extend the descriptions of treatment to which a deputy may not give consent.

Reliance on authority of deputy in relation to treatment etc

118.—(1) This section applies if—

(a)an order has been made under section 113(2)(b) appointing a deputy for a person (“P”);

(b)another person (“D”) does an act in connection with the care, treatment or personal welfare of P;

(c)D does the act with the consent of a person (“C”) purporting to be P’s deputy; and

(d)either C is not P’s deputy, or it is not within the scope of C’s authority to consent in relation to the matter in question.

(2) If—

(a)before doing the act, D takes reasonable steps to establish whether—

(i)C is P’s deputy, and

(ii)it is within the scope of C’s authority to consent in relation to the matter in question, and

(b)when doing the act, D reasonably believes that C is P’s deputy and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because C was not P’s deputy or (as the case may be) did not have such authority.

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