When someone is unable to make decision such as where they are to live, the medical treatment they consent to, or make financial decisions, they may be considered to lack mental capacity. When this happens, someone else can gain the legal power to make these decisions on their behalf.
Sometimes, especially where losing mental capacity was foreseeable, they will have appointed a Lasting Power of Attorney. However, often this will not have happened, and someone will have to make an application to the Court of Protection to become their deputy.
Anyone appointed as a deputy will have the legal authority to make decisions on behalf of someone else, if the Court finds that the person on whose behalf the decisions need to be made do not have the mental capacity to appoint a Lasting Power of Attorney. This will, obviously, come with serious obligations and responsibilities that will be continuing.
What is a Deputy
A deputy is a person who has been appointed by the Court of Protection to manage the affairs of someone without the mental capacity to do so themselves. A person can be appointed as one of two types of deputy: property and financial affairs and personal welfare.
A property and financial affairs deputy will, as expected, have the responsibility of managing a person’s financial affairs. However, if there are no finances to be managed, the Court will not appoint a deputy – benefits do not count as finances, as the Department for Work and Pensions will appoint an appointee.
The appointment of a personal welfare deputy is rare as decisions over a person’s care can often be decided by those providing the care. However, where disagreement arise, the Court may intervene. Usually, there is a requirement for regular treatment or supervision before the Court will appoint a personal welfare deputy.
Often, the deputy is a close friend or relative, but can be a professional such as a solicitor. However, professional deputies will usually charge for this, with the money coming from the person’s personal finances. It is also possible to have more than one deputy appointed.
Role and Responsibility of a Deputy
When appointed as a deputy, a person has a wide range of roles and responsibilities. These will include:
- Acting in the person’s best interests;
- Acting with due care and skill;
- Not taking advantage of the person;
- Not to delegate;
- To act in good faith;
- To respect confidentiality;
- To comply with order of the Court of Protection;
- To keep accounts (if a property and financial affairs deputy);
- To keep the person’s money separate from their own (if a property and financial affairs deputy).
The role of a deputy is intended to be as limited as possible. There are certain restrictions on their powers, such as:
- They must allow the person to make a decision on their own behalf if they have the ability to do so;
- They cannot physically restrain the person, unless it is required to prevent harm;
- Act against a decision made under a Lasting Power of Attorney;
- Refuse life sustaining treatment.
However, it is important to note that each Court of Protection decision will be dependant on the circumstances, and they may impose further restrictions on what a deputy can and cannot do. A deputy should also consider mental capacity before any decision is made, as it is always in a state of flux.
Finally, the Court can choose to end a deputyship either on the application of the person on whom the order has been made, or of its own volition if it feels the deputyship is no longer needed or they wish to change the deputy.
