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 their own affairs.
A Deputy can only act under a Court Order from the Court of Protection. The 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 (LPA). In this case, provided the LPA has been properly registered, the Attorney can continue to make decisions on behalf of the person lacking capacity.
Both LPA's 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 is made by the Court 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.
When is a Deputyship necessary?
A Deputyship might be required for a person whop lacks mental capacity and who has assets that need to be administered or decisions taken about his personal welfare.
So, for example, there might come a time when a person with capacity issues will need a Deputy to collect their income and benefits and sell assets in order to pay debts and liabilities e.g. nursing home fees. Likewise a person suffering from lack of mental capacity due to injury would need a Deputy to administer a Court Settlement to pay for an ongoing care regime, or make decisions about medical treatment.
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 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?
A 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 Deputy and these could lead to the application being refused.
In many cases a spouse, partner or close relative will be the Deputy. In cases where there is no-one able or willing to take the role then the local authority can do so (in low value assets) or a professional Deputy (e.g. a solicitor) can be appointed. Where the person lacking capacity has a large estate then a professional Deputy preferably will be appointed to act.
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 Mental Capacity Act 2005 (The Act)
The Act requires a Deputy to act in the best interests of the person on behalf of whom they are making decisions, and to supply information to the Public Guardian. The Public Guardian supervises actions taken and the decisions made by Deputies, to ensure that they are complying with the Act.
Deputy’s duties are set out in The Act and in particular follow the general principles set out below:
- 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 him, without success
- A person cannot be treated as lacking capacity merely because he wishes to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
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.
The purpose of the Deputyship report is to provide the Public Guardian and, if necessary, the Court of Protection with information about the decisions that you have made over the past year in your role as Deputy.
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 of Protection or an application by the Deputy, if he wishes to retire or resign.
Make an enquiry
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