A pretty common question we get at MHLS is how to take care of an incapacitated person’s affairs. Most people’s first guess is a power of attorney but that’s not right. Someone who lacks mental capacity for e.g. due to an accident or because of a degenerative disease like Alzheimer’s cannot create a legally valid power of attorney. So what’s the solution? Make a mental health application to the Court under the Mental Health Act.
The Mental Health Act gives the Court broad powers to manage the affairs of someone who can’t do so for themselves. It also sets out the requirements to make such an application.
Who can make a mental health application?
The Act allows two categories of persons to make this application: a public officer or the person’s next of kin. ‘Next of kin’ in order of priority is as follows:
- spouse
- child
- parent
- grandparent
- sibling
The person or people whom the Court appoints to manage the affairs is known as the “Committee” or “Joint Committee“. These persons will be directly accountable to the Court for their management of the person’s affairs and property.
What must the application include?
All applications must include a medical certificate attesting to the patient’s mental incapacity. Also, you will need to give a detailed account of all the person’s property and tell the Court what you intend to do with it for the duration of the incapacity.
Remember, the Court is concerned with protecting the person and their property – it will not give you a carte blanche to do whatever you want. The person’s care is the top priority. If you misuse or misappropriate a patient’s property, the Court will hold you liable.
When will the order cease?
An order appointing a Committee or Joint Committee automatically ceases on the person’s death. Otherwise, the order can cease if the person recovers their mental capacity or the Court makes a different order.
Disclaimer: This article is for general information only – not legal advice. If you have a legal issue, you should contact a qualified attorney (even if it’s not us).