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Published 08th July 2022 by | Court of Protection

What is a Lay Deputy?

Court of Protection

A newer version of this article can be found here: What are the responsibilities of a Lay Deputy?

The Court of Protection presides over the affairs of a person who is deemed as lacking the mental capacity to manage their own property & finances and/or their health & welfare. In some circumstances, a professional Deputy is appointed by the Court to make such decisions on their behalf and, in others, a “Lay Deputy” is appointed (e.g a friend or family member).

Just as professional deputies have certain duties and obligations to fulfil, so too do Lay Deputies.

The Office of the Public Guardian are the body responsible for supervising all Deputies.

We have set out below the key factors that any Lay Deputy should be aware of:

Responsibilities of a Deputy

A Deputy should always act in the protected party’s best interests. There are various factors to consider when determining best interests which includes ascertaining the views of the protected party.

Deputies must also be mindful of their fiduciary duty and avoid placing themselves in a conflict of interest. For example, they should refrain from performing certain acts without Court approval, such as making gifts to themselves or close family members. In addition, the funds of the protected party should always be kept separate from those of the Deputy and others.

1. OPG Reports

These reports are mandatory and should be submitted every year as part of the Deputy’s duty.

We understand that completing the OPG report can be confusing to complete and a lengthy process, seeking expert support to prepare and submit the report on your behalf avoids and potential mistakes being made.

2. Tax Returns

There is a legal requirement for a Deputy to submit annual tax returns where appropriate.

3. Family Care Payments

Where a Lay Deputy or family member/friend provides care, it is possible for a regular payment to be made in recognition of this. Nevertheless, a Deputy must be careful not to be in breach of their fiduciary duty and consideration should be given as to the appropriate amount to be paid.

court of protection

4. Gifts

Deputies are permitted to make certain gifts in specific circumstances on behalf of a person lacking capacity. Nevertheless, there are restrictions on what they can do without prior approval from the Court of Protection. This extends to interest free loans.

5. Wills

A deputy should consider whether it would be in the person’s best interests for a will to be made for them and, if so, an assessment should be undertaken as to their testamentary capacity/whether the person has capacity to make a will for him/herself.

It may be necessary for an application for a statutory will to be made, if you are in need of advice contact our Court of Protection team can assist with, in conjunction with our Wills team.

6. Property

The scope of authority that a Deputy has is dependent on the terms of the Deputyship Order. If the Order is silent in relation to buying or selling property, then an application should be made to the Court of Protection for authority. Even where express authority is given, restrictions apply where property is jointly owned.

7. Funding and Benefits

A Deputy has a duty to ensure that a person’s entitlement to benefits & funding for care needs are explored and secured where appropriate. This is a complex area and there may be a restriction in a person’s settlement order with regard to state funding.

8. Health and Welfare Decisions

Once a person attains majority at the age of 18 years, a parent no longer has the legal authority to consent to medical treatment or make decisions in relation to matters such as their living arrangements & care needs.

In certain circumstances (eg where there is a dispute between certain parties in relation to medical intervention), it may be appropriate for an application to be made to Court for a specific issue to be determined or for a Deputy to be appointed to have general authority to make such decisions on a person’s behalf.

Ultimately, the Court has the power to make sanctions and remove a Deputy where it is found that a Deputy has not acted in the best interests of a protected party.

How can you seek assistance?

Our Court of Protection team at Osborne Morris & Morgan are able to advise and assist in relation to such an application to Court.

We have a nationally recognised Court of Protection team and are able to assist with all aspects of Deputyships as outlined above.

If you have a concern that you as a Lay Deputy may not be fulfilling all of your obligations & duties and are in need of expert advice or assistance, please contact our Court of Protection team on 01525 378 177 or email us at info@ommlaw.co.uk.

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