Court of Protection: Who can be a Deputy?
If someone you know and care about no longer has capacity to make certain decisions on their own and you want to help them, there are steps you can take to support them in managing their affairs.
Even after a person has gone through a serious illness, brain injury or has been diagnosed with a learning disability, the starting point is that they are assumed to have capacity unless proven otherwise. Therefore, a capacity assessment will need to be carried out, either by a medical expert, independent assessor or a social worker.
When a person is deemed to have lost mental capacity (‘the Protected Party’), a Deputy can be appointed by the Court of Protection to make important life decisions in relation to their property and finances and/or their health and welfare.
Who can be a Deputy?
A family member or close friend can apply to be appointed as a Deputy. Alternatively, it can also be a professional person, such as a solicitor.
The person must be over the age of 18 and deemed to have mental capacity themselves. They must not have a history of bankruptcy or fraud.
The Court of Protection will usually prefer to appoint a professional person as Deputy in certain situations, such as where the Protected Party’s assets are large, complex or there are no suitable parties or there has been family disagreements.
What are the types of Deputy?
The Court of Protection has defined two types of Deputy:
- Property and Financial Affairs – Dealing with financial affairs such as paying bills, managing bank accounts, investment of funds, purchasing property and applying for benefits.
- Health and Welfare – Dealing with matters such as daily routine, residential care, therapies and medical treatment.
An appointed person can act as one type, or both but each require a separate application
What decisions can a Deputy make?
Once the Court of Protection appoints a Deputy, they will outline the authority that the Deputy has in a Court Order. The Deputy will usually be given a general power to manage the finances as if they were the beneficial owner. However, the Court of Protection will decide on a case by case basis what restrictions there will be on that power
The Court Order will outline the limit on the powers of the Deputy and the decisions that will require additional authority from the Court of Protection.
For example, the Court of Protection could place a restriction on purchasing a property for the Protected Party or only being able to spend a certain amount per year without further authority.
All decisions that a Deputy makes must be in the best interests of the Protected Party. A Deputy must also ensure that any decisions they make are taken in the least restrictive way possible.
A Deputy is also expected to involve the Protected Party as much as possible in the decision making process, and it is important to be mindful of what decision a person would have made before they lost capacity.
WHAT ARE THE LEGAL OBLIGATIONS OF A DEPUTY?
It is extremely important for a Deputy to record every decision they make on behalf of the Protected Party. For example, if a Health and Welfare Deputy decides to move the Protected Party into residential care, they must keep a record of the reason for this decision. A Property and Financial Affairs Deputy must keep a detailed record of all income and expenditure in addition to any big decisions made.
A Deputy is required to complete an annual report comprising of all the decisions they have, as well as all income and expenditure for that year and this is submitted to the Office of the Public Guardian (OPG). The OPG are the supervisory body for Deputies and they may come back with further questions on the report.
What is the application process for Deputyship?
The first step is to obtain a capacity assessment for the Protected Party. The next step will be to complete a number of forms relating to the Protected Party to send to the Court of Protection as part of the application process. The Court of Protection will then use this information to consider whether a Deputy is in the Protected Party’s best interests.
Part of the application process requires the proposed Deputy to notify people of the application. Once this has happened and there has been a period of time for anyone to object to the application, the Court of Protection will then consider the application.
What is the difference between a Deputy and LPA?
Both the Deputy and a Lasting Power of Attorney (LPA) roles are the appointment of a person to assist with the management of either property and affairs and/or health and welfare of a person. An LPA is executed and an attorney appointed by the Protected Party when they still have capacity. This means that the person has complete control over who is appointed as their Attorney A LPA for property and financial affairs can also be used prior to someone losing capacity if for example they are unable to get to the bank due to an injury. A Health and Welfare LPA can only be used once a person no longer has capacity.
If an LPA is not entered into and signed before a person loses capacity, then the appointment of a Deputy be will needed. It is important to note that once a person has lost capacity, no one else has authority to manage their day to day affairs unless they have been appointed as Deputy.
Contact Osborne Morris & Morgan – Court of Protection Specialists
Seeing a loved one lose capacity can be a stressful experience to go through, and with so many options out there, it can be difficult to know what to do next.
Our team of specialist Court of Protection solicitors can advise you on the best route to go down and will support you with the process of applying for Deputyship. We can also support you as a Deputy with the tasks, paperwork, tax returns and reports that come with the role.
If you would like to know more about becoming a Deputy, please call us on 01525 378177 or you can contact us online.