Deputyship


Deputyship

What is Deputyship?

If a person loses the ability (‘mental capacity’) to make decisions for themselves they may need someone to make decisions on their behalf. They may become less able to make decisions such as where they will live or what medical treatment they want. They may also become unable to manage their financial affairs.

Some people will already have plans in place for a time in the future when they cannot make their own decisions. They may have set up a Lasting Power of Attorney (LPA). However, if they haven’t done this, and you need to make certain decisions on their behalf, you will need to apply to the Court of Protection to become Deputy. The application is only the beginning of a longer process. If you do become someone’s Deputy, there are continuing duties and responsibilities that you will be expected to carry out in the future.

What is a Deputy?

A Deputy is a person appointed by the Court of Protection to manage the affairs of someone who lacks the mental capacity to manage their own affairs. A Deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances, it could be a professional.

Professional Deputies will charge for their time, and their fees are normally paid out of the person’s finances. To become a Deputy, you must be at least 18 years of age and agree to your appointment. It is possible for a person to have two or more Deputies. The Court of Protection will tell you how to make decisions if you are not the only Deputy.

What are the types of Deputyship?

There are two types of deputyship available: one which deals with your Property and Financial and another which deals with your Personal Welfare:

Property and Financial Deputyship

A property and financial deputyship is used to manage a person’s financial affairs. Usually, the court will not appoint a deputy if the person has already appointed an attorney to manage their financial affairs. If a person has no property or savings and their only income is from benefits, there will usually be no need for a deputy to be appointed. This is because the benefits can be managed by an ‘appointee’ – a person appointed by the Department for Work and Pensions (DWP).

Personal Welfare Deputyship

If the person lacks capacity to make decisions about their care and treatment and has not appointed an attorney, you can apply to become their personal welfare deputy. Deputies for personal welfare are rare as decisions regarding these issues can usually be made in the person’s best interests by those providing care or treatment. However, if there is a disagreement as to what is in the person’s best interests, or the decision relates to serious medical treatment, it may be necessary to ask the court to intervene. The Court of Protection does not usually appoint deputies to make ongoing decisions about someone’s health and welfare unless they need regular treatment or supervision.

What are the duties of a Deputy?

If you are thinking of becoming a deputy for a person who no longer has mental capacity, it is important to consider the responsibilities involved. There are many duties that you will be taking on, outlined below. Support, guidance and information for deputies are available from the Office of the Public Guardian (OPG). When acting as a deputy and making decisions on behalf of another person, you have a duty to:

  • act in the person’s best interests;
  • act with due care and skill (known as ‘duty of care’);
  • not take advantage of the situation of the person (known as ‘fiduciary duty’);
  • not delegate your duties unless authorised to do so in the deputyship order;
  • act in good faith;
  • respect the person’s confidentiality; and
  • comply with the directions of the Court of Protection.
  • If you are a deputy for property and financial affairs, you also have a duty to:
  • keep accounts; and
  • keep the person’s money and property separate from your own. Limits to a Deputy’s powers.

A deputy’s powers should be as limited as reasonably possible, both in terms of what they can do and how long they last. This means that the deputy should only have the powers that they really need to have and no more. There are also some specific restrictions on a deputy’s powers. A deputy cannot:

  • make a decision for the person if they can make the decision themselves;
  • restrain the person, except in very particular circumstances to prevent harm to
  • the person;
  • go against a decision made under an existing power of attorney; and
  • refuse life-sustaining treatment for a person who lacks capacity to consent to this.

Every deputyship order is different, and it may contain further limits to the deputy’s powers. For example, the court may place a limit on how much can be spent in a single transaction, or a cap on how much can be spent in a certain period of time. The court can cancel a deputy’s appointment at any time if it decides the appointment is no longer in the best interests of the person who lacks capacity.

As deputy you should consider the person’s level of mental capacity every time a decision needs to be made. A person may be able to make a certain decision at one time but not another, or at a certain time be able to make some decisions but not others. You should not assume that it is the same for all decisions and at all times, and you should do what you can to support the person to make the decision for themselves.

How to apply?

We will submit an application to the Court of Protection on your behalf. The application process involves providing the court with detailed information about the circumstances and finances of the person. To apply to be appointed as deputy, you will need to complete the following forms:

  • main application form (COP1);
  • Annex A: supporting information for property and financial (COP1A);
  • Annex B: supporting information for personal welfare applications (COP1B) –
  • for personal welfare deputyship only;
  • assessment of capacity (COP3); and
  • deputy’s declaration (COP4).

The COP4 declaration will outline your circumstances and include details of the responsibilities and duties you as a deputy must carry out. You must be able to assure the court you have the skills, knowledge and commitment to carry them out. You must assure them that there is nothing that might make your appointment inappropriate – e.g. if you have severe financial or health problems yourself, or are bankrupt.

Once the forms have been completed and submitted, the Court of Protection will then assess your suitability as a deputy from the information provided. There is also a process for notifying the person you are applying to be a deputy for, and others such as family members or friends of the person. The application process can be quite long, with decisions sometimes taking several months.

Security Bonds

Often a deputy’s first duty is to arrange a ‘security bond’ with an insurer. This is a type of insurance policy designed to financially protect the person in the unlikely event that you mismanage their finances. The court requires that all deputies for property and financial affairs do this. The size of the security bond will depend on the amount of money (including assets, such as property) that you will have control of. The court will send guidance on arranging a security bond once they have made the deputyship order. However, you will need to arrange the bond before they will send the order to you. You may pay the bond from any money you hold for the person, or pay from your own money and be reimbursed when you have access to their bank account. It is important to note that you will have to pay a yearly fee or premium for the bond, which can be paid from the person’s money. This obligation will continue for as long as a deputyship is in place.

Who to tell?

As a deputy, you will need to tell various organisations about your deputyship before they will agree to deal with you on behalf of the person. You will need to provide evidence of the deputyship order to:

  • DWP – for pensions or benefits;
  • the local authority – for housing benefit, needs assessments or assistance with care fees;
  • banks or building societies;
  • the person’s accountant;
  • the payer of any private pensions;
  • the solicitor who holds the person’s will and/or property deeds; or
  • the residential or nursing home where the person lives.

You should also inform other people involved in the person’s care, such as carers, relatives and friends.

Supervision

The OPG is there to protect anyone who lacks the mental capacity to make decisions for themselves. The Court of Protection and the OPG are essentially the same institution but with different functions. The court makes the decisions about things like deputyship, and the OPG takes care of the administration.

The OPG supervises deputies, provides evidence to the court and offers information to the public. The OPG has a responsibility to check that you are doing everything you should be doing. This involves making sure that you keep to the terms of the deputyship order, and that the decisions you make on behalf of the person follow the Mental Capacity Act and are in the person’s best interests. They can telephone you or visit you to check that you are doing what you should. There are two different levels of supervision:

  • General – all new deputies are placed under general supervision in the first year because they may need more support and guidance. If there are concerns about a deputy, they will also be placed under general supervision; and
  • Minimal – if the assets of the person are below a set limit and there are no concerns about the deputy, they will be placed under minimal supervision. For further information on supervision levels, including the financial threshold, contact the OPG.

Support from the OPG

As well as protecting the person, the OPG is also there to support people in their role as a deputy. There are various ways that the OPG can do this – both by telephone and through home visits. This support is included in the annual supervision fee.

Deputy Annual Report

As a deputy you will have to provide an annual deputyship report to the court. This gives the court information about the decisions that you have made on behalf of the person. It should also provide summary accounts for the court to approve, if you are a property and affairs deputy. You must provide information about financial transactions in the previous year, including any gifts the person has made, their care arrangements and any property that they have bought or sold. You may be asked to provide evidence, such as bank statements.

Gifts

A deputy can normally make limited gifts on the person’s behalf, but this will depend upon the details of the deputyship order. Some things that might be relevant are:

  • the finances of the person – a deputy would not be able to make a gift that would adversely affect the person’s finances. For example, if the person had £50,000 in savings and this was being used to pay for their care, a gift worth £30,000 would affect their savings and ability to pay for their care;
  • what the person has done in the past – for example, if they have always given gifts to family members or friends for their birthdays, celebrations or holidays, then generally a deputy can continue to do this for the person. You would still need to consider the amount of the gift and make sure it is reasonable.
  • a deputy should involve the person (where possible) in decisions such as giving a gift. They should also take into account the past wishes and feelings of the person.

If you are unsure whether you can make a gift, you can refer to the OPG for guidance. You should do this if you are thinking of making anything more than a small gift, or if you are unsure whether even a small gift is appropriate.

Expenses

When acting as someone’s Deputy you can claim for certain expenses, as long as they are reasonable. If you are acting on behalf of a friend or relative, they probably wouldn’t want you to pay these expenses yourself. You can only claim for certain expenses when they are for the purposes of performing your role as a Deputy – for example, postage costs, car parking tickets and travel expenses incurred through carrying out your duties.

Cost

In addition to our fee, application fees totaling up to £400 are also payable to the Court of Protection and annual supervision fees are payable to the OPG each year. Any fees that the Deputy pays in relation to the application can be claimed back from the funds once the order has been issued. Deputyship applications are a lengthy and complicated process and our fee has been calculated accordingly.

Contact us today for a no obligation appointment to discuss making a Deputyship application.