The Court of Protection and the deputy
The Court of Protection is a Superior Court of Record which has the authority to make decisions on behalf of a person who lacks capacity to make those decisions themself. The court has jurisdiction to make an order to appoint a person (the deputy) to manage a person’s affairs if they lack capacity to do so themselves. These decisions may relate to a person’s property and finances as well as a person’s welfare. The court is however reluctant to appoint health and welfare deputies. Generally speaking, the court is of the view that such decisions should be made by the person concerned (if possible), family members and health care providers. The court is uncomfortable with delegating to one person all of the very important and potentially life changing decisions. The court will generally expect these matters to be dealt with collaboratively and only in the event of disagreement will it exercise its power to make such decisions on a person’s behalf.
The following therefore explores the relationship between the court and the property and financial affairs deputy.
Who can be a deputy?
Anybody over the age of 18 can be a deputy, provided the court considers them an appropriate person to be appointed.
If a person lacks capacity (which can be determined by obtaining evidence from a medical professional following an assessment of capacity) the court can appoint a deputy to manage a person’s affairs. In most cases, the Court will grant the deputy wide powers. This means it is not necessary to apply to the court each time a decision needs to be made. For example, if a deputy has a widely drawn order they are able to purchase a property on a person’s behalf. The deputy does not need to defer to the court for permission to make this decision. Each application to the court is expensive and burdensome so it is in a person’s best interests if a deputy acts with as much autonomy as possible. That said, a deputy must adhere to the order and cannot act beyond the powers granted. A deputy has many legal responsibilities, a few of which are mentioned below.
The professional deputy and lay deputy
The role of the deputy is extensive and carries a great deal of responsibility. Very often a family member will apply to the court to be appointed as a person’s deputy. However, many families prefer a lawyer or a trust corporation to be appointed as deputy because they are experienced in the legal requirements of the role. A lawyer is often appointed if the case is particularly complex, there is a family conflict or there is a large personal injury claim to manage. The application process for a professional and lay deputy is exactly the same. A deputy will only be appointed by the court if the person concerned has been assessed by a medical professional as lacking capacity to manage their own affairs. The court application is a lengthy one and it can take the court up to six months to appoint a deputy.
The Deputy’s Role
The main role of the financial deputy is to manage the property and day to day financial affairs of a person who lacks capacity; for example, paying care fees, monitoring investments and collecting any benefits to which the person is entitled. A deputy must always act in a person’s best interests and have regard to the Mental Capacity Act and its Code of Practice. The deputy must work closely with family members, care teams and clinicians who may be involved in a person’s case, and has a duty to consult such persons. The deputy can only act in relation to those matters in which a person lacks capacity and, where possible, must involve the person when making decisions on their behalf. The deputy must produce an annual report detailing funds received and spent on behalf of the person concerned. The deputy is closely supervised by the Office of the Public Guardian to ensure they are constantly acting in that person’s best interests.