Assisted Decision-Making (Capacity) Act 2015

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Scope of decision-making order or decision-making representation order relating to property and affairs

43. (1) A decision-making representative may not dispose of the property of the relevant person by way of gift unless specific provision to that effect is made by the court in the decision-making representation order.

(2) Subject to section 44 , if a decision-making representative for a relevant person is empowered by the decision-making representation order appointing him or her as such decision-making representative to dispose of the relevant person’s property by way of gift, then, without the specific approval of the court, the power to make such a gift shall be limited to—

(a) gifts made on customary occasions to persons (including the decision-making representative) who are related or connected to the relevant person and in relation to whom the relevant person might be expected to make gifts, and

(b) gifts to any charity to which the relevant person made or might reasonably be expected to make gifts,

provided that the value of the gift is reasonable having regard to all the circumstances and in particular the extent of the relevant person’s assets and financial obligations.

(3) (a) Subject to paragraph (b), the court may, notwithstanding that there is a decision-making representative for a relevant person, confer on the Director the custody, control and management of some or all of the property of the relevant person if the court considers that the Director is the most appropriate person to exercise that power in respect of that property.

(b) An order under paragraph (a)—

(i) shall not be made unless there is no person who is suitable and willing to act as decision-making representative in relation to the property and affairs of the relevant person, and

(ii) may require some or all of the property of the relevant person which is money to be lodged into court.

(4) Where the court proposes to make an order under subsection (3)(a) in respect of the property of a relevant person, the Director shall consult with and have regard to the views of one or more than one of the members of the family of the relevant person and such other persons as the court may direct be consulted in relation to such matters as respects the management of the property to which the order may relate.

(5) Where the court makes an order under subsection (3)(a) in respect of the property of a relevant person, it may make the order subject to such conditions as it considers appropriate.

(6) A decision-making representation order may provide for the giving of such security by the decision-making representative to the court as the court considers appropriate in relation to the proper performance of the functions of such decision-making representative.