What is a Deputy?
A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of another person (the ‘patient'), who lacks the mental capacity to manage them themselves.
A Deputy can only act under a court order from the Court of Protection and that order sets out the Deputy's powers to act on behalf of the patient.
What is the difference between a Lasting Power of Attorney and a Deputyship?
Both Lasting Powers of Attorney (LPA's) and deputyships are legal methods by which decisions can be made for persons lacking mental capacity. However:
- an LPA is made by the person before he or she loses capacity and if an LPA has already been made and properly registered there is no need for a Deputy because the attorney can continue to make decisions on behalf of the person lacking capacity
- a deputyship application is made by a 3rd party after the person loses capacity and cannot legally make an LPA
The LPA process is therefore preferable because it is more likely to reflect the person's own wishes.
Why set up a deputyship?
A deputyship is required to administer assets and take decisions about the personal welfare of a person who lacks mental capacity.
- a person with dementia will need a Deputy to collect in income and benefits and perhaps sell assets in order to pay care home charges
- a person with acquired brain injury may need a Deputy to look after the court settlement and pay for an ongoing care regime
Types of deputyship
A Deputy can be appointed by the court to act as:
- A Property and Affairs Deputy - making decisions about property and financial affairs, including the sale and purchase of real property
- A Personal Welfare Deputy - making decisions about health and personal welfare, including treatment options
Who can be a Deputy?
Any person over the age of 18 can be a Deputy. Any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become Deputy and these could lead to the application being refused.
In many cases a spouse, partner or close relative will be the Deputy, but where the person lacking capacity has a large estate then a professional Deputy (eg a Trust & Estate Practitioner or Chartered Accountant) is likely to be required.
What are the Powers and Duties of a Deputy?
A Deputy's powers derive from the deputyship order made by the Court of Protection and the Deputy cannot exceed those powers. The order may give wide powers to the Deputy, or it could set limits to those powers, for example providing that large items of expenditure or investment cannot take place without further permission of the court.
The Deputy's duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help him, without success
- A person cannot be treated as lacking capacity merely because he wishes to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person's best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that minimises restriction of the person's rights and freedom
The Court of Protection also places serious obligations on the Deputy, to protect the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.
Supervision and Termination of Deputyships
When a deputyship order is made, the Office of the Public Guardian will allocate the deputyship to a category of supervision.
For example, a new potentially difficult case may be subject to close supervision but a straightforward or long standing case will be less closely supervised.
The Deputy's reporting obligations will depend on the level of supervision.
A deputyship order is terminated when the person lacking capacity dies or recovers capacity, or if the order is limited in time and expires. It can also be discharged by order of the Court of Protection or on application by the Deputy, if he wishes to retire or resign.
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