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Legal changes

Office of the Public Guardian guidance for property and financial affairs deputies and attorneys

This is a most welcome development and can only improve matters for the people whose interests are at the centre of actions carried out by deputies.

Having been assessed as lacking mental capacity by an appropriate practitioner (and if there is no attorney in place) a protected party may need the assistance of the Court of Protection in appointing a deputy - whether this be a relative, friend or a professional deputy. Being a property and financial affairs deputy is a complex yet critical role.

Once in place, a deputy will assist the person to manage their property and financial affairs, to the extent that they cannot do so for themselves, by making decisions using the five key principles of the Mental Capacity Act 2005.

In order to do this the deputy needs to have a full understanding of the person’s situation. This can include, in various circumstances, the ability to view their medical records.

Some examples of situations where a deputy may need to review medical records in order to carry out their role to the benefit of the person for whom they are appointed to act might be: in looking at whether the person might be entitled to NHS continuing healthcare funding; or whether there might be capacity issues around the historical execution of documents (and so whether there is merit in a challenge); right down to the basics of ensuring that state benefits are correctly and fully obtained and, of course, in ensuring that a deputy can properly understand and deal holistically with the person whom they are assisting.

Access to medical records

Historically this has proved difficult to achieve. There has often been a refusal to recognise the authority of a deputy, even when a deputyship order is presented. This has been partly due to misunderstandings in respect of a deputy’s role, compounded by the fact that a property and financial affairs appointment does not extend to health and welfare.

Welcome guidance issued

These issues have been recognised by the Office of the Public Guardian (OPG) who issued new guidance on 10 November 2021.

The guidance highlights and reiterates the Information Commissioner’s Office (ICO’s) view that: “it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority”.

It also sets out relevant questions for the organisation holding requested information to consider, directing them to the relevant part of the Mental Capacity Act (MCA) Code of Practice - Chapter 16:

  • Do I (or does my organisation) have the information?
  • Am I satisfied that the person concerned lacks capacity to agree to disclosure?
  • Does the person requesting the information have any formal authority to act on behalf of the person who lacks capacity?

Am I satisfied that the person making the request:

  • Is acting in the best interests of the person concerned?
  • Needs the information to act properly?
  • Will respect confidentiality?
  • Will keep the information for no longer than necessary?

Organisations can also submit requests to the OPG to search their registers in order to confirm whether the requestor is a deputy. These requests can be submitted on an urgent or normal basis, and it is possible to do them electronically. The OPG usually respond very promptly.

How is it faring in practice?

Some six months on from the OPG issuing their guidance we are finding - where it is necessary to request the medical records of those people for whom our professional deputy, Beverley Beale, is appointed to act - that the practical process is far more straightforward.

This is a most welcome development and can only improve matters for the people whose interests are at the centre of actions carried out by deputies and organisations holding information relating to them by simplifying the means of co-operation.

The full OPG’s guidance is available here.

For further information on any of the issues raised please contact our court of protection lawyers.

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