What is a Deputy?
A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of another person, who lacks the mental capacity to manage them themselves. A Deputy can only act under a court order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity.
A Deputy will not be required if the person lacking capacity has previously made a Lasting Power of Attorney. In this case, provided the LPA has been properly registered, the attorney can continue to make decisions on behalf of the person lacking capacity.
What is the difference between a Lasting Power of Attorney and a Deputyship?
Both LPAs and deputyships are legal methods by which decisions can be made for persons lacking mental capacity. The key difference between the two is that:
- An LPA is made by the person before he or she loses capacity
- A deputyship application is made by a 3rd party after the person loses capacity
The person therefore has more control over the LPA process and choice of attorney and the LPA may therefore be more likely to reflect the person’s own wishes.
Why set up a deputyship?
A deputyship maybe required for a person who lacks mental capacity and who has assets that need to be administered or decisions taken about their personal welfare.
For example, there may come a time when a person with dementia will need a Deputy to collect their income and benefits and sell assets in order to pay care home charges. Or, say, a person with acquired brain injury would need a Deputy to administer a court settlement to pay for an ongoing care regime, or make decisions about medical treatment.
Types of deputyship
A Deputy can be appointed by the court to act as:
- A Property and Affairs Deputy – making decisions about property and financial affairs, including the sale and purchase of real property
- A Personal Welfare Deputy – making decisions about health and personal welfare, including treatment options. However, the Deputy cannot refuse consent to life sustaining treatment
Who can be a Deputy?
Any person over the age of 18 can be a Deputy. Any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become a Deputy and these could lead to the application being refused.
In many cases a spouse, a partner or close relative will be the Deputy. Within cases where there is no-one able or willing to take the role, then the local authority can do so (in low value estates) or a professional Deputy (e.g. a solicitor) can be appointed.
Where a person lacking capacity has a large estate, then a professional Deputy will almost always be appropriate.
What are the Powers and Duties of a Deputy?
A Deputy’s powers derive from the deputyship order made by the Court of Protection and the Deputy cannot exceed those powers. The order may give wide powers to the Deputy, or it could set limits to those powers. For example providing that large items of expenditure or investment cannot take place without further permission of the court.
The Deputy’s duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help them, without success
- A person cannot be treated as lacking capacity merely because he or she wishes to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom
In addition to following these general principles, the Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.
Supervision and Termination of Deputyships
When a deputyship order is made, the Office of the Public Guardian will allocate the deputyship to a category of supervision. This may range from close supervision (particularly for new cases in the first year or two) to a light touch supervision in straightforward cases. The Deputy’s reporting obligations will depend on the level of supervision.
A deputyship order is terminated when the person lacking capacity dies or recovers capacity, or if the order is limited in time and expires. It can also be discharged by order of the Court or Protection or on application by the Deputy, if he or she wishes to retire or resign.
How can we help?
We are experienced Deputies and familiar with the practices of the Court of Protection and the Office of the Public Guardian. We accept instructions to act as Professional Deputies and are always happy to discuss individual cases on a no-obligation basis.
We have experience of acting in high value personal injury or clinical negligence cases where loss of capacity has occurred. It is essential for the Deputy to work closely with the legal team recovering compensation, prior to settlement of the claim. We can also help preparing applications on behalf of prospective Deputies, liaising with the Court of Protection regarding applications, assisting deputies in managing their deputyships and in making further applications to the Court when required.
To discuss our Deputyship service, either email us or call 020 8941 2187.