In this article, our Court of Protection solicitors answer some frequently asked questions about Deputyships and consider what the role of a Deputy involves.
What is a Deputy?
A Deputy is appointed by the Court of Protection to make certain decisions on another person’s behalf if they:
- Lack the mental capacity to make those decisions for themselves (for example, though a physical or mental illness, Alzheimer’s or dementia, a learning disability, or a stroke).
- Do not have a valid Lasting Power of Attorney (LPA) that stipulates who should make those decisions for them.
How do you become a Deputy?
You need to apply to the Court of Protection to become a Deputy. There are various forms you need to complete and documentation to provide.
You must also tell the person you are applying to become a Deputy for and inform at least three people connected to that person, for example, the person’s relatives, social worker or doctor, about your application.
The application process is complex, and applications must be considered carefully. For guidance on Court of Protection applications from our experienced Deputyship solicitors, please call Bookers & Bolton on 01420 82881 or make an online enquiry.
Who can be a Deputy?
Any adult over the age of 18 can be appointed as a Deputy.
Deputies must meet several conditions, such as not having a criminal record or not having been declared bankrupt.
Deputies are usually a relative of the person who lacks capacity (lay Deputies), but you can also have professional Deputies, such as solicitors or a trust corporation.
Can more than one Deputy act for the same person?
The Court can appoint one or more Deputies to act for the same person. If two or more Deputies are appointed, the Court will state whether they should act ‘jointly’ or ‘jointly and severally’.
Joint deputies always act together. They must all agree on decisions, and all sign any relevant documents. Joint and several deputies can act together or can also act independently if they wish.
Deputies may be appointed jointly for some issues and jointly and severally for others. For example, two deputies could be appointed jointly and severally for most decisions, but the Court might stipulate that they act together when selling property.
What are the different types of Deputy?
There are two different types of Deputyship:
- Property and affairs Deputyship. This is the most common type of Deputyship and involves making decisions about a person’s property and financial affairs, such as:
- Deciding on practical daily tasks, like paying the person’s bills or applying for benefits on their behalf.
- Taking more complex decisions, such as choosing how to invest the person’s savings or how much to spend on their care.
- Personal welfare Deputyship. A personal welfare Deputyship is used to make decisions about a person’s care and medical treatment, for example, whether the person moves into residential care or receives life-sustaining treatment. Appointing a personal welfare Deputy is rare, as usually the relevant healthcare professionals are entrusted to make such decisions on a person’s behalf.
What are the responsibilities of a Deputy?
The exact scope of a Deputy’s powers is determined by the needs of the person who lacks capacity and is set out in the Deputy order issued by the Court.
All Deputies must consider the person’s mental capacity every time they make a decision for them and must meet certain standards for Deputies.
Government guidance states that when making a decision Deputies must:
- Make sure it is in the other person’s best interests.
- Consider what they have done in the past.
- Apply a high standard of care. This might mean involving other people, for example getting advice from relatives and professionals, like doctors.
- Do everything you can to help the other person understand the decision, for example, explain what is going to happen with the help of pictures or sign language.
- Add the decisions to an annual Deputy report.
Deputies must not:
- Restrain the person unless it is to stop them from coming to harm.
- Stop life-sustaining medical treatment.
- Take advantage of the person’s situation.
- Make a will for the person or change their existing will.
- Make gifts unless the Court order says you can.
- Hold any money or property in their own name on the person’s behalf.
Are Deputies supervised?
Deputies are supervised by the Office of the Public Guardian (OPG). Deputies must send an annual report to the OPG explaining their decisions and accounting for any money they have spent.
Can a Deputy sell property on another person’s behalf?
Whether a Deputy can buy and sell property depends on the terms set out in the Court order defining the scope of their powers. Some property and financial affairs Deputyships allow the Deputy to make decisions about the person’s property, but some do not.
If a Deputy wants to sell property on behalf of a person who lacks capacity but it is not included in the Court order, they must seek the appropriate authority from the Court of Protection. Any decision must be shown to be in the vulnerable person’s best interests and consider several other factors, such as their assets and income, and an analysis of the current property market.
This can be a complicated process, and specialist legal advice is vital.
Do Deputies get paid?
No, Deputies cannot usually be paid, although they can claim certain reasonable expenses incurred while undertaking the role. These can include:
- Travel expenses
- Car parking tickets.
- Postage costs.
Only professional Deputies, such as solicitors or accountants, can charge for the time they spend doing the role.
How long does a Deputyship Order last?
A Deputyship Order lasts for as long as the individual concerned lacks capacity and needs someone to make decisions on their behalf. This will usually be for the lifetime of the person lacking capacity.
Can Deputies be replaced?
If you are concerned that a Deputy is not making decisions that are in a vulnerable person’s best interests, you can apply to the Court of Protection for a Deputy to be discharged and replaced.
Court of Protection Solicitors Alton and Hampshire
The Court of Protection process can often be stressful, lengthy, and daunting.
At Bookers & Bolton, we can help if you are considering applying to be appointed as a Deputy, advising you on the application process and supporting you in the various obligations of that role.
Our specialist lawyers are on hand to provide the advice and guidance you need. We can also act as a professional Deputy where needed if, for example, no one else is suitable or family members do not wish to take on this responsibility.
Our specialist private client team can advise on a wide range of Court of Protection matters, including disputes such as objecting to the appointment of a particular Deputy, capacity disputes, challenging gifts, and disagreements arising in relation to statutory wills.
Regardless of the situation’s complexity, we will provide you with the necessary advice and expertise.
If you would like further information or advice regarding our Court of Protection and Deputyship services, please get in touch with us on 01420 82881, email us at firstname.lastname@example.org or make an online enquiry here.