February 11, 2019 Legal

A signed contract at any cost? Make sure whoever signs your terms and conditions is authorised to do so

Ordinarily, the only persons able to enter into, say, a residential or service contract, on behalf of an incapacitated resident, would be an Attorney or a Deputy of the Court of Protection or someone expressly authorised by the Court to enter into such a agreement.

If you are dealing with an Attorney you should ask to see a copy of either the registered Enduring Power of Attorney or a registered Property and Financial Lasting Power of Attorney (post 2007). There may be exceptions where an Attorney is unable to sign on behalf of the service user or where you may require the signatures of several Attorneys. So, you need to be careful to ensure even an Attorney does have the requisite authority to sign, though most will.

Alternatively, where the incapacitated adult did not appoint an Attorney, you may find you are dealing with a Deputy appointed by the Court of Protection. Most orders will enable the Deputy to enter into a residential care or service agreement. However, again, there may be some restriction in the Order preventing this, so one needs to check. Meanwhile, do not be misled into thinking that a person claiming to be a resident’s ‘next of kin’ is afforded any legal authority to enter into contracts on behalf of an incapacitated adult. They are not.

The risk of having someone legally unauthorised to sign your agreement, on behalf of an incapacitated adult, is an undesirable situation. For advice on any legal issues concerning the legal authority of those signing on behalf of service users, contact Sara Isenberg in the Health and Social Care Team at Royds Withy King on 020 7583 2222 or sara.isenberg@roydswithyking.com. Alternatively, contact Hazel Phillips, also in the Health and Social Care Team, at hazel.phillips@roydswithyking.com who can review your service user contracts and ensure they are enforceable and compliant with consumer legislation/CMA Guidance.

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