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Mental incapacity can arise in a number of ways, such as an accident, stroke, dementia, severe learning disability or severe mental health problem. This lack of capacity can be temporary or permanent.
If a person no longer has the mental capacity to deal with their own affairs, they will need the support of others to act on their behalf. If there is no Power of Attorney in place then it will be necessary to apply to the Court of Protection,
In some situations, it may be necessary to make decisions on behalf of someone who lacks the mental capacity to make their own decisions about their residence and care. These decisions can result in a deprivation of the person’s liberty, and this is only permissible if the Deprivation of Liberty Safeguards (DoLS) are correctly followed.
DoLS are there to protect people who are being deprived of their liberty by their caregivers for the purpose of their care. The law allows certain caregivers to deprive a person of their liberty if they lack the mental capacity to consent and are “under continuous supervision and control… [and] are not free to leave”.
Deprivation of liberty must be duly authorised; if it is not, they could unlawfully deprive someone of their liberty and may breach their human rights. It must also be possible to challenge the deprivation of liberty in court.
In considering whether it is necessary, consideration needs to be given to whether it is the least restrictive method of ensuring that the needs of the person are met.
It is possible to appeal a deprivation of liberty on behalf of an individual being deprived of their liberty to the Court of Protection if you believe that it is not in the person’s best interests. The court can agree to overturn the authorisation or amend it.
If you have questions regarding DoLS or would like to discuss further, please contact the team at Appleman Legal. We are here to assist you
A deputyship application allows an appointed person to make decisions on behalf of someone who has lost mental capacity in relation to their property, financial affairs, health and personal welfare.