Mental Capacity Act News
Mental Capacity Act - Office of the Public Guardian
On Monday 1st October 2007 the Mental Capacity Act will be fully implemented in England and Wales, which includes the creation of the Office of the Public Guardian (OPG), the new Court of Protection, Lasting Power of Attorneys and the IMCA service in Wales. Some parts of the Act came into operation in April 2007, namely the creation of a new criminal offence of wilful neglect or ill-treatment, the provision of Independent Mental Capacity Advocates (IMCAs) in England, and the Code of Practice.
The implementation of the Act means the Public Guardianship Office (PGO) will be replaced by Office of the Public Guardian (OPG). The Public Guardian is a new statutory office holder with specific powers and duties to supervise and regulate those appointed to make decisions on behalf of those who cannot do so themselves.
The Public Guardian will be the registering authority for Lasting Powers of Attorney. These are similar to the current Enduring Power of Attorney, but allow people to choose an attorney to make health and welfare decisions. In addition the Public Guardian will supervise deputies appointed by the Court and provide information to help the Court make decisions.
The way in which the Public Guardian will supervise deputies will differ from the current approach to the supervision of receivers. Anyone acting as a receiver at the end of September will be treated as a deputy and work is currently in progress regarding issuing orders to receivers to cover transitional issues.
A specialist supervision team will carry out an initial assessment and allocate deputies to a supervision regime. The supervision levels will be allocated on a risk-based approach. For many deputies this will result in a less intrusive approach than the way in which receivers are supervised now. In some instances other activities will be undertaken such as:
- Additional support for deputies;
- A requirement to provide more detailed annual accounts or report (if directed by the Court) in a format determined by the OPG;
- An initial visit followed by an assessment of the need for further visits;
- Confirmation of security bonding as directed by the Court;
- Other records may be requested as set out in the Act and additional financial assessments may take place during the initial period of accounting.
- The Public Guardian will back this tailored approach with the offer of better guidance to new deputies and training.
- An accessible customer support and advice service will also be available.
A significant difference between the Public Guardianship Office and the Office of the Public Guardian will be the emphasis placed on promoting the concept of an assumption of capacity of the clients of the Court of Protection and the understanding that every client has differing levels of capacity. The OPG will work with appointed decision makers and provide support and guidance that will emphasise the need to always act in the best interests of the client.
