This section provides that a deputy does not have power to make a decision on behalf of P unless P lacks capacity to make that decision, or the deputy reasonably believes that P lacks capacity. The deputy is subject to the provisions of the Act, in particular provisions relating to principles (sections 1, 2 and 5) and best interests (section 7).
The section provides that a deputy is not permitted to be given power to prohibit a person from having contact with P or to direct that a different person takes over responsibility for P’s healthcare. A deputy is also not permitted to be given powers relating to the settlement of P’s property, the execution of a will for P or the exercise of a power vested in P whether beneficially or as a trustee or otherwise. Additionally, a deputy may not be given a power to make a decision on behalf of P which is inconsistent with a decision that was made by an attorney under a lasting power of attorney or an enduring power of attorney. Also, a deputy cannot refuse consent to life-sustaining treatment for P or deprive him or her of his or her liberty. A deputy cannot restrain P unless the court has given the deputy scope to do so and the deputy reasonably believes that: P lacks capacity in relation to the matter; there is a risk of harm to P if the deputy does not carry out or authorise the act of restraint; and that carrying out or authorising the act is a proportionate response to the likelihood of harm to P and the seriousness of the harm concerned. Finally, a deputy cannot authorise psychosurgery for P.
The section provides that the Department may, by regulations, extend the types of treatment in respect of which the deputy cannot give consent.
Commentary on Sections Part 6 – High Court Powers: Decisions and Deputies Section 117 – Restrictions on deputies