Appointees - practice questions and queries

Law and practice Mental Capacity Act
1

It has always been my understanding that Appointees who manage a person’s benefits where the person lacks capacity to do so, do not in fact fall within the scope of the MCA (see assessing-capacity-financial-decisions-guidance-final.pdf (wordpress.com), page 91), and as suggested on the DWP website the consideration is in fact whether the person receiving the benefit ‘cannot manage their own affairs because they’re mentally incapable or severely disabled’ (Become an appointee for someone claiming benefits - GOV.UK (www.gov.uk)).

However, in my role working for a local authority if a Social Worker, for example, believes that a person ‘cannot manage their own affairs because they’re mentally incapable or severely disabled’ I have always advised that before making a referral to the DWP or a local financial advocacy/appointee service that it would be good practice to complete a capacity assessment evidencing how we reached this conclusion.

Question 1: Do people agree with this approach?

What I am then often asked by practitioners is ‘what is the best interests decision’, if we do believe that the person lacks the capacity to ‘manage their own affairs’ (the benefits paid to them by the DWP)?

Question 2: Is there in fact a best interests decision to be made at this stage, or is it more, who do we feel is a ‘suitable person’ to act as an appointee (so a family member or a financial advocacy/appointee service) (see the DWP guidance ‘Next Steps’)?

My view would be, and please tell me if you disagree, is that a practitioner should evidence who we believe is the ‘suitable person’ and why we think this is the case, but that this is not in fact a best interests decision… What are the hive minds thoughts on this?

Question 3: Could it in fact also be the case that whilst the person ‘cannot manage their own affairs because they’re mentally incapable or severely disabled’ this does not mean that they cannot make the decision about who they would like to act as their appointee?

Now I am not sure about this, but I worry that this runs the risk of separating these 2 questions into artificial pigeon holes (see para 13 to 15 of Liverpool City Council v CMW [2021] EWCOP 50). What are the hive minds view on this especially if one party who is asking to act as the appointee appears to have ulterior motives. Should this be looked at as a separate decision?

Question 4 (last question): I have just noticed that the ‘Guidance Agents, appointees, attorneys, deputies and third parties: staff guide’ [Withdrawn] Agents, appointees, attorneys, deputies and third parties: staff guide - GOV.UK (www.gov.uk) was withdrawn on the 29th of July 2022, and I can’t find the replacement guidance. Any ideas as this was quite a helpful reference tool.

2

Interesting topic! My initial thoughts are that it is definitely more nuanced that I see some people considering when dealing with these issues.

I agree about there being some confusion between the LA approach in that you need to lack capacity first. I agree that’s not the case and it’s perfectly fine for someone to have capacity to ask the DWP to authorize someone else to manage the benefits application on their behalf for the reasons listed. You can have difficulty but not actually lack capacity. One of the private appointee organisations I have used does ask for either the MCA assessment and BI decision, or the person’s consent for the referral.

However, when we are using capacity as the reason, one of my frustrations is all too often I see the MCA assessment being around how finances are spent. This is not the same as making decisions about applying for and receiving benefits. For an appointee you’d want the latter, surely?

I would like to think that a person can lack capacity to make decisions about their benefits/finances, but still have capacity to decide who should help them with it. They’re very different decisions; but actually if you don’t understand how your benefits works how can you be sure that the person your nominating does? (Similarly, if I don’t understand what my care needs are, how can I make decisions about who supports me with them?)

Interesting point about who makes the BI decision. Well wouldn’t the DWP be the decision maker? But as you’re the person in contact with the people and family, they’d be keen to hear your views as who you think would be suitable. Mostly likely they’d accept your suggestion as the BI decision, but I believe that the DWP do interview the proposed appointee themselves and might (hopefully) do their own checks for any previous concerns around benefit applications/fraud.

1 Like
3

I agree with Jadie’s points that a person may need an appointee for practical reasons, rather than inability to manage finances. This was of course more important in the days when benefits were paid in cash at the post office. Also that the role of the appointee is to make the claim for benefits, rather than decide how it is spent. One of the criteria for the DWP in deciding whether an appointee was needed, was whether the claimant understood the declaration that was required, including the need to tell the DWP of any changes in circumstances.
Appointeeships predate the MCA by many years but the MCA applies to all almost aspects of life, so capacity and best interests should definitely be considered by all involved.

1 Like
4

Hi Jadie / Stephen,

Firstly thank you for your responses and agree with your points. In relation to ‘I agree with Jadie’s points that a person may need an appointee for practical reasons, rather than inability to manage finances.’ now i agree with this in principle, however, if you look at the [Withdrawn] Agents, appointees, attorneys, deputies and third parties: staff guide - GOV.UK (www.gov.uk), which has been withdrawn, and specifically [Withdrawn] [Withdrawn]: Part 5 – Appointee - GOV.UK (www.gov.uk) they do state that this is likely to be ‘rare’:

## Physical Disability – special circumstance

5183. If the customer is mentally capable but is severely disabled making an appointment is not precluded. This is likely to be a rare event but cannot be ruled out. In particular, if the disablement prevents the customer from signing or making a mark then an appointment will be needed to enable claims etc to be made.

For example: advanced motor neurone diseases where the customer experiences extreme physical difficulties in making and managing written or teleclaims to benefit; Parkinson’s disease where the customer still has mental capacity but is not longer physically able to write or telephone; customer who has suffered a severe stroke which impairs their ability to write, including using a computer, or telephone.

In most situations where a person may need an appointee for practical reasons, I would probably suggest that a financial advocate would be the best course of action over an appointee. What are your views?

5

Other instances were a person who has capacity to manage their affairs (benefit application and payments) but would benefit from being under an appointee is were they make unwise decisions spending all their benefit payments on drugs and gambling, leaving them with no money for food and other essentials.

6

This is an issue I am being presented with daily, I work with dual diagnosis patients. We assess under the MCA and they have capacity but they are making unwise decisions, I thought under the MCA we must not assume someone does not have capacity, because they are making unwise decisions (spending their benefits on drugs and alcohol). What are peoples views on this?