Office of Public Sector Information

PART 2 Appointment of representatives

Commencement of appointment procedure

10.  The procedure for appointing a representative must begin as soon as—

(a) a best interests assessor is selected by the supervisory body for the purposes of a request for a standard authorisation; or

(b) a relevant person’s representative’s appointment terminates, or is to be terminated, under regulation 14 and the relevant person remains subject to a standard authorisation.

Appointment of representative

11.  Except where regulation 9 applies, a supervisory body may not appoint a representative unless the person is recommended to it under regulations 7 or 8.

Formalities of appointing a representative

12.—(1) The offer of an appointment to a representative must be made in writing and state—

(a) the duties of a representative to —

(i) maintain contact with the relevant person,

(ii) represent the relevant person in matters relating to, or connected with, the deprivation of liberty, and

(iii) support the relevant person in matters relating to, or connected with, the deprivation of liberty; and

(b) the length of the period of the appointment.

(2) The representative must inform the supervisory body in writing that they are willing to accept the appointment and that they have understood the duties set out in sub-paragraph (1)(a).

(3) The appointment must be made for the period of the standard authorisation.

(4) The supervisory body must send copies of the written appointment to—

(a) the appointed person;

(b) the relevant person;

(c) the relevant person’s managing authority;

(d) any donee or deputy of the relevant person;

(e) any independent mental capacity advocate(14) appointed in accordance with sections 37 to 39D of the Act(15), involved in the relevant person’s case; and

(f) every interested person named by the best interests assessor in their report as somebody the assessor has consulted in carrying out the assessment.

Termination of representative’s appointment

13.  A person ceases to be a representative if—

(a) the person dies;

(b) the person informs the supervisory body that they are no longer willing to continue as representative;

(c) the period of the appointment ends;

(d) a relevant person who has selected a family member, friend or carer under regulation 5(1) who has been appointed as their representative informs the supervisory body that they object to the person continuing to be a representative;

(e) a donee or deputy who has selected a family member, friend or carer of the relevant person under regulation 6(1) who has been appointed as a representative informs the supervisory body that they object to the person continuing to be a representative;

(f) the supervisory body terminates the appointment because it is satisfied that the representative is not maintaining sufficient contact with the relevant person in order to support and represent them;

(g) the supervisory body terminates the appointment because it is satisfied that the representative is not acting in the best interests of the relevant person; or

(h) the supervisory body terminates the appointment because it is satisfied that the person is no longer eligible or was not eligible at the time of appointment, to be a representative.

Formalities of termination of representative’s appointment

14.—(1) Where a representative’s appointment is to be terminated for a reason specified in paragraphs (c) to (h) of regulation 13, the supervisory body must inform the representative of—

(a) the pending termination of the appointment;

(b) the reasons for the termination of the appointment; and

(c) the date on which the appointment terminates.

(2) The supervisory body must send copies of the termination of the appointment to—

(a) the relevant person;

(b) the relevant person’s managing authority;

(c) any donee or deputy of the relevant person;

(d) any independent mental capacity advocate appointed in accordance with sections 37 to 39D of the Act, involved in the relevant person’s case; and

(e) every interested person named by the best interests assessor in their report as somebody the assessor has consulted in carrying out the assessment.

Payment to a representative

15.  A supervisory body may make payments to a representative appointed following a selection under regulation 9.

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Mental Capacity Act 2005 (“the Act”) provides for the deprivation of liberty of people who lack capacity to consent to arrangements proposed for their care in care homes and hospitals where authorisation under section 4A of and Schedule A1 to the Act (“Schedule A1”) exists.

Paragraph 139 of Schedule A1 requires that the supervisory body appoint a representative to a person in respect of whom a standard authorisation has been issued. Supervisory bodies are only able to appoint representatives who have been selected for that purpose. The role of the representative is to maintain contact with the person and to support and represent them in matters relating to their deprivation of liberty.

These Regulations provide for the selection and appointment of representatives and the circumstances in which they may be paid, by—

(a) detailing the eligibility requirements for appointment as a representative (regulation 3);

(b) enabling the best interests assessor to determine whether the person deprived, or potentially deprived of, liberty (“the relevant person”) has capacity to select a person to be their representative (regulation 4);

(c) enabling the relevant person to select a family member, friend or carer to be their representative, where they have capacity to make that decision (regulation 5);

(d) enabling a donee or deputy of a relevant person who lacks capacity to select a representative, to select a family member, friend, carer or him or herself to be the representative, where their scope of authority permits that (regulation 6);

(e) requiring that the best interests assessor confirms the eligibility for appointment of any selection made by a relevant person, donee or deputy. Where confirmation is given, the best interests assessor must recommend the selected person for appointment. Where confirmation cannot be given, the selector must be advised why that is the case and invited to make another selection (regulation 7);

(f) enabling the best interests assessor to select a relevant person’s family member, friend or carer as the representative when one is not, or cannot, be selected by the relevant person, a donee or a deputy (regulation 8);

(g) enabling the supervisory body to select a person in a professional capacity to be a representative where one cannot be selected from the relevant person’s family, friends or carers (regulation 9);

(h) requiring that the procedure for appointing a representative begin as soon as a best interests assessor is selected in relation to a request for a standard authorisation or as soon as an existing representative’s appointment terminates or is about to terminate (regulation 10);

(i) requiring that the supervisory body only appoints a person approved by the best interests assessor, unless such approval cannot be given (regulation 11);

(j) detailing the formalities of appointment and termination of appointment (regulations 12 to 14); and

(k) enabling the supervisory body to pay a person who has been selected to be a representative in a professional capacity (regulation 15).