When someone lacks capacity to make certain decisions, it is important that they have family, friends and/or professionals looking out for them and making sure that decisions are made in their best interests. In some cases, it may be appropriate to appoint a deputy to act on someone’s behalf. This can be a complex process and is a really key role. We’ve created a Deputyship FAQ to answer some of the most common questions we are asked.
What is a deputy?
A deputy is appointed by the Court of Protection to make decisions in the best interests of someone who has lost the mental capacity to make those decisions. There are two different types of deputyship: Personal Welfare (sometimes this is known as a Health and Welfare) deputy, and Property and Financial Affairs deputy.
A deputy can be a family member or a friend and this is known as a ‘lay deputy.’ In more complex cases, it might be more appropriate to appoint a professional deputy, and there are some solicitors that are able to take on this role.
What can a Property and Financial Affairs Deputy do?
This type of deputyship does exactly what it says on the tin – it enables you to manage someone’s finances and any property that they have. This would include things like:
- Managing bank accounts or investments
Buying a property for someone to live in
Maintaining a property by paying bills
- Selling a property if someone needs to go into a care home
- Paying care home fees
- Applying for and manging benefits
You will need to be incredibly careful, however. The deputyship order you receive from the Court of Protection will set out very clearly what decisions you are and are not allowed to make. For example, you might not be allowed to sell someone’s property without approval from the court first.
What can a Personal Welfare Deputy do?
Personal welfare deputies can make decisions about how someone is looked after and what medical treatment they might receive. Because of the seriousness of these types of decisions, it is quite rare for the Court of Protection to make these orders.
As we have set out in our previous articles, when there are disputes about what care or treatment is in someone’s best interests, it is quite common for an application to be made to the Court of Protection. In such cases, a judge will make the decision about what should happen.
The Court of Protection will normally only go that step further and appoint a personal welfare deputy if:
- There is a history of disputes within a family about what is in someone’s best interests
- A person is at high risk of abuse
- There is a need for someone to make a series of linked welfare decisions over time
Like with financial deputyship, it is important to check the order you receive from the court. This will set out what you can and cannot do.
What is the difference between deputyship and a Lasting Power of Attorney?
A lasting power of attorney (“LPA”) is a document which is prepared by someone when they have capacity to make decisions. It sets out who they want to make welfare and/or financial decisions for them if and when they lose capacity in the future.
Deputyship is applied for on someone’s behalf when they have already lost the capacity to make certain decisions, and when an LPA was not prepared beforehand.
What does a deputyship order look like?
Once you are appointed as a deputy, you will receive an order from the Court of Protection. As set out above, you will need to read this carefully to ensure that you know what your powers are (what you can and cannot do) and what responsibilities you have.
Why is deputyship important?
Some people are well prepared in case they lose capacity to make decisions. These people prepare Lasting Powers of Attorney in advance, and this allows a nominated person to make certain decisions for them when they are not able to anymore. But, for many people, illnesses or accidents happen and they are not prepared. Deputyship is important as it allows for decisions to be made on someone’s behalf when they can no longer make those decisions themselves.
People often think that their ‘next of kin’ can make decisions about their welfare or their finances if someone happens to them. However, this is a myth! There is no such thing as a next of kin in law and they have no legal right to make decisions for you. People can face struggles trying to do things such as access bank accounts to try and pay care home fees for a loved one if they do not have the appropriate legal authorities in place.
Who can apply to be a Deputy?
To apply to be a deputy, you need to be over 18 years of age. You also need to be of demonstrably good character. This means that you might not be able to be a deputy if you have a criminal record, have been declared bankrupt.
If you are going to act as someone’s deputy, it is also important that you know the person well. The Court of Protection is likely to ask you what your relationship is with the person you want to be a deputy for. This will include how often you see them and how involved you are in their life. The most important quality that you must have as a deputy is that you must always have the best interests of the individual in mind.
You will have to complete an annual deputyship report and submit this to the Office of the Public Guardian (“OPG”). It is the OPG’s role to supervise you and ensure that you are acting in the person’s best interests in all the decisions you make.
At Reeds Solicitors, we are experienced in assisting family members and loved ones to make deputyship applications. We are on hand to support you in completing the paperwork and explaining the process step-by-step. Please reach out to us either through our dedicated deputyship solicitors webpage, or through our contact us now page.