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, [from here on referred to as the ‘Order’] permits the appointment of another person to take charge of these affairs.
The “Patient” is the name given by the Order to a person who is suffering from mental disorder and whose financial affairs are subject to the Court’s control. A “Controller” is the name given to those appointed by Court to manage a Patient’s financial affairs.
The Order places the responsibility for managing the financial affairs of Patients on the High Court in Northern Ireland. Within the High Court system, it is the Office of Care and Protection (Patients Section) which deals with the appointment of Controllers and the management of Patients' financial affairs. This Office is more commonly known as ‘OCP’.
What is the OCP?
The OCP is a section of the Family Division of the High Court. The practice and procedure of the OCP is defined in the Patients Affairs Rules which are set out in Order 109 and Appendix D of the Rules of the Court of Judicature [SR1986 No. 1841].
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.
What is the role of the OCP Master?
The Master is the judicial officer of the Court who is authorised to exercise any discretion, power or other function of the Court. The Master may also, in particular cases, refer a question to a judge for a decision. The Master can authorise someone to do anything which appears necessary or expedient with respect to the property and affairs of the Patient. For example, he/she can authorise:
- The transfer and investment of money
- The release of monies to meet bills
- The sale or purchase of property; or alteration of title
- The making of gifts
- The making of a Will and
- The carrying on of a business
What are the powers of the OCP?
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 of himself, his family or dependents.
What powers does the OCP 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 OCP 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 or solicitor.
Every Controller shall annually, or at such other intervals as the court may direct, deliver the accounts operated on behalf of the Patient to OCP. These accounts will be inspected and if appropriate, be ‘passed’ by OCP.
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 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.
What is the role of the Official Solicitor?
The Office of the Official Solicitor is provided for by section 75 of the Judicature (Northern Ireland) Act 1978. The principal purpose of the office is to represent the interests of certain persons who are under a legal disability (i.e. “Patients”) where no one else is suitable, willing or able to.
Article 109  of the Court of Judicature Rules provides authority for the Master (Care & Protection) to invite the Official Solicitor to act as a Controller for a Patient when there is no one else available to assume this role. The Official Solicitor and her Office have therefore a close working relationship with the Master (Care & Protection) and OCP Patients Office.
The Official Solicitor currently acts as Controller for approximately 350 Patients.
Aside from acting as a Controller, the Official Solicitor’s work also includes the following:
- providing legal assistance to the Office of Care and Protection in connection with the estates of Patients where someone other than the Official Solicitor is appointed as Controller.
- representing the interests of persons under a legal disability in family or other civil proceedings
- taking responsibility for other miscellaneous matters (such as consent to medical treatment cases) where the court feels that the assistance of the Official Solicitor would be an advantage
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 General 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.
In addition Health and Social Care Trusts have some powers in relation to the property of a person in accommodation for which s/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.