The Nominated Representative

In one line

Somebody has to speak for a person who cannot, and the Act lets the person choose who that will be, and tells them how to speak.

In the wording a student can write in an exam: the nominated representative is the person appointed under section 14 to act for a person with mental illness in the matters the Act assigns; the appointment may be made by the person themselves in writing on plain paper, or in an advance directive, and failing that the Act supplies a statutory order of precedence; section 15 provides for a minor; section 16 allows the Board to revoke or alter the appointment; and section 17 states the duties, which are not to decide for the person but to give particular credence to the views of the person so far as they understand the decision.

Why the law has this at all

The problem is the one in [Consent for a Person Who Cannot Consent], with two features that make it harder in this setting.

Incapacity here is episodic and recurrent. A person may need someone to act for them this month and not next year, and again the year after. A once-and-for-all guardianship is the wrong instrument.

The family is not always the ally. The person most likely to be appointed by default is the person who may have committed the individual, may be managing their property, or may be the source of the difficulty. The older law assumed the family's interests and the patient's coincided; this Act does not.

The response is characteristic of the whole statute: let the person choose in advance, supply a default only where they have not, and constrain how the appointed person exercises the role.

Section 14: appointment

Section 14(1): notwithstanding section 5(1)(c), every person who is not a minor shall have a right to appoint a nominated representative.

Section 14(2): the nomination shall be made in writing on plain paper with the person's signature or thumb impression.

That is a deliberately low formality. No stamp, no attestation, no lawyer, and a thumb impression suffices. The Act is drafted for people who may be poor, may be unable to write, and may be making the appointment in a hospital.

Section 14(3): the person appointed shall not be a minor, shall be competent to discharge the duties or perform the functions assigned under the Act, and shall give his consent in writing to the mental health professional to discharge them. So the representative must accept the role, and the acceptance is given to the professional rather than to the appointer.

Section 14(4): where no nominated representative is appointed, the following are deemed to be the nominated representative, in the order of precedence: