GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

Management of Property and Affairs of patients (Part VIII)

Introduction

Most people who suffer from mental disorder are quite capable of looking after their property and affairs. The law recognises this fact and assumes that a person is capable until the contrary is proved.

However when a person is deemed incapable of managing his financial affairs because of mental disorder, the law, in particular, the Mental Health (Northern Ireland) Order 1986, permits the appointment of another person to take charge of these.

Part VIII of the Order places the responsibility for managing the financial affairs of patients, i.e. those with insufficient mental capacity to manage their own affairs, on the High Court in Northern Ireland. Within the High Court system, it is the Office of Care and Protection which deals with the appointment of controllers and the management of patients' financial affairs. What is the Office of Care and Protection? The Office of Care and Protection is a section of the Family Division of the High Court. The Master of the Office of Care and Protection is the judicial officer of the court who is authorised to exercise any discretion, power or other function of the court.

If the Court is satisfied that there is a need for a Controller to be appointed and has received medical evidence confirming the Patient's incapacity, it will make an order appointing a Controller. This order gives details of the specific powers conferred on the Controller, which are usually quite limited. Additional orders or authorities may be issued by the Court from time to time, varying or extending the Controller's power. It is usual for the person applying to be Controller to have to attend the Court.

What are the powers of the Office of Care and Protection? The Master of the Office of Care and Protection can take and delegate responsibility for the management of a person's property and affairs. This includes everything a person could do if he was well enough to administer his property and affairs for the benefit himself, his family or dependents. What powers does Office of Care and Protection not have? The Office of Care and Protection does not have any power to decide where a patient should live or any decisions relating to medical care. How does the Office of Care and Protection perform its duties? The Office of Care and Protection will generally appoint a 'Controller' to deal with the day-to–day management of the Patient's financial affairs. This can be a relative, a friend, or perhaps a professional advisor.

What happens if there is no one suitable or willing to act as Controller? If no relative or friend is willing to act or if there is a disagreement between them as to whom should act, the Master may appoint an officer of the Court, or the Official Solicitor as a the last resort, as the Controller. If there are limited assets, instead of appointing a Controller, the Master may authorise someone to manage the property and affairs of the patient under a 'Short Procedure Order'. What powers will the Controller have? A controller can do all the things in relation to the property and affairs of the patient as the court orders, directs or authorises him to do. If the court is later satisfied that the patient has become capable of managing his property and affairs the controller will be discharged by the court. Who can refer to the Office of Care and Protection? Anyone who believes that the property or affairs of an individual with a mental disorder may require protection can contact the Office of Care and Protection themselves or through a solicitor. The Court will require satisfactory medical evidence that the patient is suffering from a mental disorder and is incapable of managing their finances and property (the Court can act in the interim if the patient's property or affairs need to be protected as a matter of urgency). Who MUST refer? The Regional Health and Social Care Board, Health and Social Care Trusts, the Regulation and Quality Improvement Authority (RQIA) and any person running anursing home, a home for persons in need or a private hospital are under a legal duty to notify the Office of Care and Protection if they are satisfied that:

  • A person for whom they have responsibility (or, in the case of RQIA, of whom they have knowledge) is incapable of managing his property or affairs;
  • The involvement of the court in managing that person's affairs is appropriate; and
  • No one else has taken steps to notify the Office of Care and Protection.

How should the referral be made to the Office of Care and Protection?

In most situations referral will be made by a social worker or care manager in the Health and Social Care Trust in which the patient currently resides or is hospitalised.

The social worker/care manager is required to complete the Article 107 referral form (the Office of Care and Protection's Form 1). This must be accompanied by a medical certificate (A5). All sections of this certificate must be completed by the medical practitioner in full. LINK TO Article 107 referral form (the Office of Care and Protection's Form 1) and LINK TO Medical Certificate (A5)

In addition the social worker/care manager should also prepare a short but comprehensive report outlining the patient's current social and financial circumstances. LINK TO OCP Article 107 Checklist

A statement should also be included to reflect the fact that the Office can only consider the case if there are sufficient assets which would merit the appointment of a Controller.

These documents should then be sent to the Office of Care and Protection.

When should the referral be made to the Office of Care and Protection? The referral should be made within fourteen days of the body or person becoming aware that the person is incapable of managing his financial affairs because of the mental disorder.

As stated above a statement should be included to reflect the fact that the Office can only consider the case if there is sufficient assets which would merit the appointment of a Controller. When may a referral to the Office of Care and Protection NOT be required? If the patient relies on social security benefits only, it may not be necessary to refer to the Office of Care and Protection.

Regulation 33 of the Social Security (Claims and Payments) (NI) Regulations 1987 provides that the DHSSPS can authorise an appointee to act on behalf of a person who cannot claim for himself because of mental incapacity, for example if he is mentally ill or suffering from dementia.

What happens once the Referral has been received by the Office of Care and Protection? On receipt of a referral, and provided it contains all the information / details as laid out in the Article 107 referral form, the Office will write to the relevant next-of-kin with a view to their appointment as Controller.

If sufficient information has not been provided within the referral the Office of Care and Protection will revert back to the person who lodged same for further clarification.

Can the family of a person, considered incapable of managing financial and property affairs lodge an independent application for controllership? Yes. If a Health and Social Care Trust is not involved the family can lodge an independent application for controllership.

The relevant forms can be requested directly from the Office of Care and Protection. Where there is no one suitable to make the application, the Office can direct an officer of the court or the official solicitor to make the application. In urgent cases, the requirement to apply in writing can be waived.

What other protections for the patient 's property and finances are available within the provisions of the Mental Health (Northern Ireland) Order 1986? The court may arrange a visit by a 'Lord Chief Justice Visitor' who may be a medical, legal or lay visitor, to investigate any particular matter relating to the capacity of the patient to manage his property or affairs and then report to the court.
Article 104

In addition Health and Social Care Trusts have some powers in relation to the property of a person in accommodation for which he is responsible. Under Article 116 (1) of the Order, these powers apply to a person incapable by reason of mental disorder of managing and administering her/his property and affairs who resides in accommodation for which the Regional Board is responsible. The power does not apply where a controller has already been appointed.

Where is the Office of Care and Protection located?

Office of Care and Protection
Patients' Office
Royal Courts of Justice
Chichester Street
Belfast
BT1 3JF


For further information on this please follow the link below.

LINK TO Dealing with the Financial Affairs of the Mentally Ill

What other protections are available for a person who is or may become mentally disordered and unable to manage their financial affairs and property? In addition to the protections contained in the Mental Health (Northern Ireland) Order 1986 the law provides the additional protections:

  • The Enduring Powers of Attorney (Northern Ireland) Order 1987
    An Enduring Power of Attorney (EPA) is where one person (the donor) gives another person (the attorney) the authority to act on his behalf in relation to the donor's property and affairs. There is no authority to act in welfare or health decisions. This power can only be granted by the donor whilst he is capable of understanding the nature and effect of creating such a power. The EPA will become active immediately unless it specifically states it is not to come into effect until the person is mentally incapable. The attorney has a duty to register the EPA with the Office of Care and Protection when he believes that the Donor is becoming incapable or is incapable.

    LINK TO The Enduring Powers of Attorney (Northern Ireland) Order 1987
  • Article 38 of Health and Personal Social Services Order 1972
    This Order imposes a specific duty on social services to protect or deal with the property of any person in respect of whom arrangements have been made for admission to hospital or removal to suitable premises under Article 37 (persons in need of care and attention).
  • Regulation 33 of the Social Security (Claims and Payments) (NI) Regulations 1987 (referred to above)
    This regulation provides that the DHSSPS can authorise an appointee to act on behalf of a person who cannot claim social security benefits for himself because of mental incapacity / mental disorder.