If a person is unable to issue a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), a court of protection deputyship is a way to obtain the legal right to act on their behalf and this person would be referred to as a deputy. There are two deputyships for different types of decisions: one for decisions about a person’s property and finances, and another for decisions regarding their wellbeing.
In most cases, a deputy is a friend or relative of the incapacitated individual, but in some instances, it could be a solicitor, accountant, or other court-appointed expert.
Professional deputies charge a fee for their services, which is normally covered by the client’s funds. To become a deputy, you must be at least 18 years old and consent to your nomination. There are a number of responsibilities of a deputy and in this article, court of protection deputy duties, we take a look at these issues in more depth.
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What is the Court of Protection?
The Court of Protection supervises decisions and procedures in line with the Mental Capacity Act. If someone needs court approval to make choices regarding your health, welfare, finances, or property, you or someone assisting you must file a petition.
The court can deliver decisions regarding:
- Whether an action to be taken on your behalf is appropriate when you lack the capacity to do so yourself – the court can assess whether they believe you have the mental capacity to make a particular decision or whether something is in your best interests.
- Disputes that cannot be handled through other means, such as the employment of an independent advocate for mental competence.
- Situations where multiple decisions must be made on your behalf, as opposed to a single decision.
- Disputes over the authorization for liberty-restricting safeguards or their application.
- Removing an attorney or deputy appointed pursuant to a lasting power of attorney
- Your healthcare or personal care in the absence of an attorney or deputy.
- Whether an advance decision or Lasting Power of Attorney is valid and its implications is challenged.
- Whether a deprivation of liberty safeguards authorization was legitimately given or resolving a dispute on the use of safeguards against you.
When making decisions for you, the court must always act in your best interest.
Court of Protection Deputy Orders
The Court of Protection may issue two different sorts of Deputy Orders:
- Property and Financial Affairs Deputyship Orders: These orders authorise someone to manage or take charge of an incapacitated person’s financial affairs, ranging from simple tasks like paying the vulnerable person’s bills and managing their pension to more complex tasks like buying, selling, and adapting properties; investing large sums of money; and regularly reviewing the health of portfolios and arranging care packages.
- Personal Welfare Deputyship Orders: These orders authorise a person to make significant health and welfare decisions, such as discussing treatment with doctors and determining whether to continue life-sustaining care, as well as deciding where the incapacitated person should live.
Financial and property concerns are handled differently by the Court of Protection than health and welfare issues. If a person lacks the mental capacity to manage his or her own finances, the court will typically grant applications to appoint a Deputy to make choices that the incapacitated person is unable to make.
However, the Court of Protection is far more circumspect when choosing a Personal Welfare Deputy. When a person lacks the capacity to make their own welfare decisions and there is a dispute between family, friends, and public entities such as the Local Authorities or NHS Trust over what is best for them, the Court of Protection will typically issue a one-time Order addressing the particular issues at hand.
Permitting a single individual to make decisions on a particular issue is a significant directive with far-reaching consequences. In lieu of designating a Deputy to make decisions, the law prefers that the Court of Protection renders individual rulings in particular circumstances. In the majority of property matters, a series of ongoing decisions will be made.
What are court of protection deputyship duties?
If you are considering becoming a deputy and making decisions on behalf of someone else, it is essential that you understand the responsibilities associated with this position. You’ll need to:
- Consider the person’s previous and present wishes and emotions when acting in the person’s best interests.
- Carefully and with as much information as possible, make decisions — this may require speaking with the person, those who know them, or professional specialists.
- Not take advantage of the person who may well have cognitive impairment , such as by misusing anything they own for your own benefit or financial gain.
- Unless your deputyship allows it, do not delegate your responsibilities; this means that only you may make the final choice on behalf of the person. However, you can discuss it with others and receive guidance. This involves acting with honesty and decency.
- Respect the person’s confidentiality, which includes not disclosing information about their income, property, and health unless it is necessary to act in their best interests.
- Follow the Court of Protection’s directions.
Additionally, if you are a deputy for property and affairs, you must:
- Maintain financial records
- Keep the individual’s money and property distinct from your own, for as by establishing different bank accounts.
Once a deputy has been nominated, the OPG can offer support, direction, and information.
Helping the individual make decisions
Every time a judgement must be taken as a deputy, you should evaluate the individual’s mental competence. This is crucial since a person’s mental capacity might fluctuate. They may be able to make a particular choice at one time but not at another.
Likewise, if a person is unable of making a particular decision, they may be able to make a different type of decision at this time. You should not presume the individual is incapable of making judgments at all times. For any decision you must make on a person’s behalf, you should first do everything possible to help them make the decision themselves. For instance, you may try presenting the necessary decision-making information in a different manner, such as by using images instead of words.
When making decisions on someone else’s behalf, you should include them as much as possible. If possible, explain the situation to the individual and listen to what they have to say.
Providing an annual report
As a deputy, you will be required to submit an annual report to the Court of Protection. This informs the court of the decisions you have taken on behalf of the individual.
If you are a personal welfare deputy, your report will include details about any medical treatment and care arrangements the individual received over the year.
If you are a deputy for property and affairs, your report must detail the individual’s financial transactions during the year. This will consist of:
- Any presents made
- Any property the individual has purchased or sold
- The cost associated with their care arrangements.
It should also submit financial statements for judicial approval. You may be required to present documentation, such as bank statements.
The Office of the Public Guardian (OPG) will provide you with instructions and copies of the necessary forms to complete this process. Instead of submitting paper forms, you can use the OPG’s online reporting system. This might aid in the maintenance of records throughout the year. If you have any questions, you can get assistance from the OPG.
Is the deputy limited with respect to the extent of authority over the individual’s affairs?
Yes, the deputy’s authority is limited to the terms of the court order only. They must also adhere to the guidelines outlined in the Mental Capacity Act of 2005 and the accompanying Code of Practice.
How long will the process take?
It can take up to six months to select a deputy. If the court requires additional information to decide the application, additional time may be necessary. To avoid delays, it is essential that all paperwork is correctly completed and that the court receives all relevant information at the outset.
In extreme instances, you may apply to the courts for a temporary injunction, for instance to gain access to funds to pay off debts.
Are Deputies supervised?
The Office of the Public Guardian (OPG) supervises deputies, and deputies are required to submit an annual report to the OPG detailing the decisions they have made and the money they have spent. The deputy may delegate the preparation of the yearly report to a lawyer or accountant.
How long does the deputy order remain in effect?
The court order will specify the duration of the deputyship. If the individual regains capacity, a petition to discharge the deputy must be filed with the Court of Protection. If the individual dies, the deputyship terminates automatically.
What if I disagree with the ruling of the Court?
You may be able to appeal a Court of Protection ruling to the Court of Appeal; but, you may require permission to do so. If you wish to contest a ruling, you should consult with a Court of Protection-specialized solicitor.
Can anyone apply to the court of protection?
Yes, everyone is eligible to apply.
You may file a petition if you have a question that the Court has the authority to decide. If you are the subject of the court’s ruling and you are at least 18 years old, you do not need permission to do this. If you are under the age of 18, your legal guardian would apply on your behalf, and they may do so without your consent.
Your solicitor, deputy, or anyone appointed under a court order relevant to the matter could also apply without your permission. Additionally, family members, hospital trusts, Clinical Commissioning Groups, and local authorities may apply, but only with Court approval.
You should still be included if someone brings a legal action on your behalf to the Court of Protection due to your incapacity. You will be required to hire a lawyer, but if you cannot afford one, the court may appoint one on your behalf.
How we can help
We have a proven track-record of helping clients with court of protection orders. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact our Private Client Solicitors
It is important for you to be well informed about the issues and obstacles you are facing. However, expert legal support is crucial in terms of saving you money and ensuring you achieve a positive outcome.
To speak to a member of our new enquiries team today, simply call us on 0345 901 0445 or click here to make a free enquiry . We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
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