38. (1) This section applies where—

(a) the court has made a declaration which falls within paragraph (a) of section 37(1), but—

(i) there is no suitable person to act as co-decision-maker for the relevant person, or

(ii) where there is a suitable person to act as co-decision-maker for the relevant person, a co-decision-making agreement in respect of the relevant person is not registered in accordance with Part 4 within the period (which may be extended at the court’s discretion) set down by the court,

or

(b) the court has made a declaration in respect of a relevant person which falls within paragraph (b) of section 37(1).

(2) Where this section applies, the court may make one or both of the following orders:

(a) an order making the decision or decisions concerned on behalf of the relevant person where it is satisfied that the matter is urgent or that it is otherwise expedient for it to do so;

(b) subject to subsection (7) and section 36, an order appointing a suitable person who has attained the age of 18 years to be a decision-making representative for the relevant person for the purposes of making one or more than one decision specified in the order on behalf of the relevant person in relation to his or her personal welfare or property and affairs, or both.

(3) In making a decision-making order or decision-making representation order in relation to personal welfare, the court shall have regard to the terms of any advance healthcare directive made by the relevant person and shall—

(a) ensure that the terms of the order are not inconsistent with the directive, and

(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with the directive or the relevant powers exercisable by any designated healthcare representative under the directive.

(4) In making a decision-making order or decision-making representation order, the court shall have regard to the terms of any enduring power of attorney made by the relevant person or enduring power under the Act of 1996 made by him or her and shall—

(a) ensure that the terms of the order are not inconsistent with the terms of the enduring power of attorney or enduring power under the Act of 1996, and

(b) where a decision-making representative is appointed, ensure that his or her functions are not inconsistent with—

(i) the functions of an attorney under an enduring power of attorney, or

(ii) the duties and obligations of an attorney under the Act of 1996.

(5) When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following:

(a) the known will and preferences of the relevant person;

(b) the desirability of preserving existing relationships within the family of the relevant person;

(c) the relationship (if any) between the relevant person and the proposed representative;

(d) the compatibility of the proposed representative and the relevant person;

(e) whether the proposed representative will be able to perform the functions to be vested in him or her;

(f) any conflict of interest.

(6) Where the court appoints a decision-making representative to make decisions on the relevant person’s property and affairs, it shall have regard to the following:

(a) the size, nature and complexity of the relevant person’s financial affairs;

(b) any professional expertise, qualification or experience required to manage the relevant person’s financial affairs;

(c) the capability of the proposed representative to manage the relevant person’s property and affairs;

(d) the financial expertise and support available to the proposed representative.

(7) Where the court proposes to appoint a decision-making representative for a relevant person but no suitable person is willing to act as such decision-making representative—

(a) the court shall request the Director to nominate 2 or more persons from the panel established under section 101 for consideration by the court for such appointment,

(b) the Director shall comply with a request by the court under paragraph (a), and

(c) the court may, under subsection (2)(b), appoint, from amongst those nominees, a person to be a decision-making representative for the relevant person for the purposes referred to in that paragraph.

(8) In making a decision-making order or decision-making representation order, the court shall make provision for such other matters as it considers appropriate, including—

(a) subject to subsection (9), the conferral of powers on a decision-making representative,

(b) the imposition of duties on a decision-making representative,

(c) the attachment of conditions relating to the making of any relevant decision by a decision-making representative or the exercise of any power by a decision-making representative in his or her capacity as a decision-making representative, and

(d) the period of time for which the order is to have effect.

F50[(8A) Notwithstanding subsection (2)(b), the court, in making a decision-making representation order in the circumstances where subsection (1)(a) or section 55(4) applies, shall—

(a) in attaching any conditions under subsection (8)(c), take into account the application of section 41(3) to the decision-making representative, and

(b) make provision for the decision-making representation order to cease to have effect on the date of registration of a co-decision-making agreement in relation to the relevant person under Part 4.]

(9) In making a decision-making representation order, the court shall, in so far as the order relates to the conferral of powers referred to in subsection (8)(a), ensure that the powers conferred are as limited in scope and duration as is necessary in the circumstances having regard to the interests of the relevant person the subject of the order.

(10) The court may appoint one or more than one person as a decision-making representative for a relevant person and may so appoint different persons in respect of different relevant decisions.

(11) In making a decision-making representation order, the court shall require the decision-making representative, or decision-making representatives if there is more than one, to sign a statement indicating that he or she—

(a) understands and undertakes to act in accordance with the powers conferred and the duties imposed on him or her by the court, and

(b) understands and undertakes to act in accordance with the guiding principles set out in section 8.

(12) A decision-making representation order appointing more than one person as a decision-making representative for a relevant person in relation to the same relevant decisions shall make provision as to whether such persons are to act—

(a) jointly,

(b) jointly and severally, or

(c) jointly as respects some relevant decisions and jointly and severally as respects other relevant decisions.

(13) The court may make a decision-making order or decision-making representation order notwithstanding that an application has not been made to it under this Part for an order in that respect or in those terms.

(14) The court may vary or discharge a decision-making order or decision-making representation order, whether of its own motion or pursuant to an application to it under this Part by a person entitled by virtue of section 36 to make the application.