Substitute financial decision-making in England and Wales: a study of the Court of Protection

Abstract

In England and Wales, the legal framework for substitute decision-making for adults who lack capacity to make financial decisions is provided by the Court of Protection through Enduring Powers of Attorney (EPAs) and Receiverships. Little is known about the ‘patients’of the Court and the capacity assessments made before implementing substitute decision-making. A sample of records (N=800) indicated that the typical client is an older woman, living in a residential home, with limited financial resources and dementia. Of concern, formal capacity assessment was minimal: for EPAs, the data were too limited to analyse, whilst, for Receiverships, few (21.5 per cent) referred to relevant skills. Compared with other medical practitioners, psychiatrists were significantly more likely to make complex assessments. Nevertheless, none addressed fully the accepted definition of incapacity. We discuss the implications of our findings in the context of the proposals (Lord Chancellor's Department, 1999) to reform the current substitute decisionmaking framework.

Keywords:

• capacity
• mental disability
• substitute decision-making
• Court of Protection