The Act requires a nominated person (‘NP’) to be consulted when the best interests are considered in relation to a DoL. Under the Act, the person who lacks capacity (‘P’) is empowered to choose and appoint a NP, if P has capacity to do so.
What is a nominated person?
A NP is a person aged 16 or over. The NP is not a decision maker but has an important role to play in safeguarding P’s best interests regarding a DoL. The NP must be consulted if it is practicable and appropriate to do so and, where P is subject to an authorisation, the NP can, in some circumstances, apply to the Tribunal on behalf of P for a review of that authorisation.
The only exception to the requirement of consulting with the NP is if the situation is an emergency. If waiting to put in place or consult with the NP would create an unacceptable risk of harm to P the act can be done without a NP. However, the NP should be involved as soon as possible.
Appointment of nominated person by P
In most circumstances the NP is taken from a default list. However, where P has capacity to do so, he or she can appoint any person aged 16 or over to be his or her NP by making an appointment in writing. Capacity is decision specific, so even if P does not have capacity regarding the DoL they may have capacity to appoint a NP. The NP can be appointed at any time and the appointment is valid until revoked or until the NP resigns.
The NP’s agreement to being NP must be in writing and is required either prior to the appointment document being made, in which case the appointment takes effect as soon as the document is made; or at the same time as, or after, the document is made, in which case the appointment takes effect as soon as the agreement is given. If the NP is taken from the default list there is no need to have agreement in writing from the NP.
The NP may resign as P’s NP at any time, by giving notice in writing to P.
Where a person has capacity (and is aged 16 or over), he or she can also make a declaration that a certain person or persons are not to be his or her NP. The declaration can also be revoked if the person has capacity to do so.
Appointment by the Review Tribunal
In some circumstances the Review Tribunal can appoint a NP. This is where:
- the person who is P’s NP is not suitable to act as NP
- there is no-one who falls within the categories on the default list
- it is not practicable to establish whether there is a NP, or
- P has a NP, but it is not practicable to establish who that is.
When determining if a person is to be considered not suitable to act as a NP, consideration may be given to whether the person has behaved, is behaving or proposes to behave in a way that is not in P’s best interests.
A person appointed as NP by the Tribunal may resign as NP by giving notice in writing to that effect to P.
If the Tribunal has appointed a NP and P then regains capacity to make decisions about who should be the NP, P may at any time while he or she has capacity to do so, apply to the Tribunal for revocation of the appointment. The Tribunal must then make an order revoking the appointment unless it considers that P no longer has capacity to make decisions about who should be his or her nominated person.
The Default List
If P or the Review Tribunal has not appointed a NP one is selected from the default list. The person who falls highest up the list is P’s default NP, as long as he or she is over 16 and is not to be disregarded as a result of a declaration by P or an order by the Review Tribunal.
The default list is as follows:
- carer
- spouse or civil partner
- someone living as P’s spouse or civil partner for at least 6 months
- child
- parent
- brother or sister
- grandparent
- grandchild
- aunt or uncle
- niece or nephew
- someone living with P for a period of at least 5 years
A carer is someone who is aged 16 or over and is not under a contract of employment, or any other contract with any person in relation to P, or as a volunteer for a voluntary organisation.
If there are two or more persons falling within the same category, the default NP will be the oldest of the persons. However, if falling within the same category, whole blood relationships are to be preferred over half- blood or step relationships regardless of age. Adoptive children or parents are to be treated as whole blood children or parents.
The person can refuse the role by giving notice in writing to P. That person can withdraw the notice of decline by giving a further notice in writing to P.
Back to Homepage