When a person lacks the mental capacity to make decisions about their own affairs, a Deputy can be appointed by the Court of Protection to make such decisions on their behalf.
This may be a friend, a relative or a professional person. In the past, these used to be known as Receivers.
It is generally preferable for a person’s affairs to be dealt with under the terms of an Enduring or Lasting Power of Attorney, but where a person has not made either of these, an application for a Deputy to be appointed should be made.
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The Court will set out the extent of a Deputy’s powers, which can apply to any area in which the person could have acted or made decisions if they had had the capacity to do so themselves.
This may be in respect of financial matters, personal welfare issues, consent to medical treatment and social care interventions. The powers given will depend on the needs of the person whom the Deputy has been appointed to assist.
Decisions which Deputies commonly have to make can involve; buying and selling the person’s property, operating bank accounts and investing savings, paying for private medical treatment and care home fees, dealing with tax affairs, deciding where a person lives and whom they live with, day to day decisions such as what the person eats, wears, etc. and can also include dealing with the person’s medical records and treatment.
Deputies have a responsibility and a duty of care to act in the best interests of the person for whom they are making decisions. They must pay regard to the principles of the Mental Capacity Act and the related Code of Practice.
Before making a decision, it is important for Deputies to consider whether the person they are assisting could make that decision for themselves with some support or under certain circumstances.
They should involve the person who lacks capacity as much as possible in any act or decision and consider their values, views, beliefs, wishes and any feelings that they may have expressed in the past. If possible, the Deputy should consult with others such as the family and friends about their views on the person’s best interests.
Deputies are not expected to be experts in assessing capacity. However, when making a decision on behalf of someone else, they must reasonably believe that the person lacks the capacity required to make that decision themselves or to give consent at the time it was needed.
Deputies are permitted to employ professionals such as solicitors, accountants and regulated financial advisors to assist them in carrying out their role as a Deputy. They are not permitted however to delegate their responsibilities to another person.
Deputies’ actions are supervised by the Office of the Public Guardian. Individual assessments will be made of each case to determine the appropriate level of supervision and cases are reviewed regularly.
The level of supervision will depend largely on the complexity and value of a person’s estate and the relationship between the Deputy and the person for whom they are acting.
The Office of the Public Guardian will advise Deputies individually of what is required from them. This may include providing reports covering all decisions made on behalf of the person lacking capacity, along with receipts for money spent, bank statements and correspondence, letters and reports from health agencies or social services.
It is also possible that a Court of Protection Visitor may visit both the Deputy and the person whose affairs they are managing, in order to ensure that the Deputyship is working for both parties and that the decisions being made are in the best interests of that person. The Office of the Public Guardian may also contact others with an interest in the person’s welfare.
For someone to be appointed as a Deputy, they must submit a number of forms to the Court of Protection. The type of forms required will depend on what the Court is being asked to decide. They will generally ask for information in respect of both the individual who lack mental capacity and the applicant, in particular with regard to their personal circumstances and finances.
At Onions & Davies, we have many years’ experience of completing and submitting these forms and we will be able to give you advice if you are unsure about any parts of the forms.
A number of people interested in the welfare of the person who lacks mental capacity will be notified of the application and they will be able to give the Court their views on the matter if they wish to do so.
The Court will then assess the applicant’s suitability to act as Deputy and if the application is successful, they will issue an Order setting out the extent of the Deputy’s powers.
There is an initial fee to be paid to the Court when making the application and additional annual supervision fees. They are based on the cost of providing support services to both the Deputy and the person who lacks capacity.
Once the Deputy has been appointed, further fees will be payable in respect of any particular decision which the Deputy asks the Court to make.
All fees are payable from the funds of the person who lacks capacity.
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This information refers to the law of England & Wales only, which from time to time changes. In particular, tax information changes annually. It is not a substitute for professional advice, which is up to date and specific to your needs. This information is a summary of the provisions relating to deputyship and cannot cover every aspect of their operation. It represents our understanding of current legislation in England and Wales but should not be relied upon as an authoritative statement of law nor as constituting advice. We would advise that legal advice be sought in every circumstance.