Anyone that has ever had to make an application to the Court of Protection (COP) will appreciate the issues created by the delays and administration involved. In a potential attempt to ease this, at the end of 2021, the Ministry of Justice (MOJ) launched a public consultation on a small payments scheme which would enable a third-party (for example a parent) limited access to funds on behalf of an adult that lacked mental capacity, without the need to apply to the COP.
This would have the advantage that small sums of money could be accessed, for that person's benefit, without the need to obtain COP approval, which can be time consuming and costly - particularly when considering the sums involved. This was intended to act as a bridging provision while more permanent access was secured, for example by the appointment of a deputy.
However, despite widespread support for the scheme, the MOJ has decided not to proceed. Whilst the concept is considered to have value, a number of concerns have been raised as to the exactly how the scheme would work in practice and, importantly, what safeguards would be required. There would certainly be little value in putting in place a scheme which would add to, rather than ease, the administrative burden.
There is good news however, the Government will now look to work with the COP to not only streamline existing processes, which will be welcomed by all, but also to raise public awareness as to when sanction by the COP is required, in order to manage someone's property and financial affairs. This will be key for appointed attorneys under Lasting or Enduring Powers of Attorney and for loved ones of those facing a loss of mental capacity, helping guide them through what is not only a technical, but also very emotional, process.
A step in the right direction is the new and amended COP practice directions which came into effect from 1 January 2023. Amongst other changes is the ability to complete the property and financial affairs deputyship application online. The requirement to notify both the person concerned, and any other required respondents, is now prior to the submission of the application to the COP, rather than after submission.
Whilst these may not speed up applications overnight, it is a welcome step in the right direction to make easier what can already be a stressful and overwhelming process.
'We will continue to work with other government departments...and the public to develop guidance and information to raise awareness of the [Mental Capacity Act]'