If someone lacks capacity to make a particular decision for themselves, at the time the decision needs to be made, it may be appropriate to make an application to the Court of Protection for a deputy to be appointed to act for that individual. The person may lack capacity to make certain decisions as a result of, for example, a brain injury or living with dementia.
A deputy may be a relative or a friend, a professional (such as an individual solicitor), or a trust corporation (for example, our firm’s Trust Corporation acts as deputy for many of our vulnerable clients). If the Court approves of the proposed deputy an order (a Deputyship Order) will be made appointing them to this role. The order authorises the deputy to make decisions on behalf of the vulnerable person.
There are two types of deputy: a deputy for property and financial affairs and a deputy for personal welfare. These naturally deal with very different decisions. The appointment of a property and financial affairs deputy is far more common, while the appointment of a personal welfare deputy is quite rare, with the Court preferring to make one off decisions in relation to health & welfare decisions, rather than delegating that authority to a third party.
The deputyship order will set out the extent of the deputy’s powers. If a welfare deputy is appointed they will usually have the power to make decisions about certain medical treatment, where someone lives, or the way in which a person is cared for. If someone is appointed as a financial deputy their authority will usually be quite wide, to include paying the person’s bills, receiving and organising their income, buying and selling property, completing tax returns, and dealing with investments. Professional deputies tend to be given more autonomy than a family member, as they are likely to have more experience in acting in that role.
It is very important that, no matter the type of decision being made, the deputy always acts in the best interests of the vulnerable person concerned. A deputy also has various other responsibilities and, when managing someone’s financial affairs, these duties would entail:
- Consolidating the person’s assets where appropriate and ensuring that they are kept separate from anyone else’s property
- Acting only in connection with matters where the vulnerable person lacks capacity to make a decision and supporting the person as much as possible with decision-making
- Working closely with the vulnerable person, their family, any carers and other professionals to effectively administer their affairs
- Ensuring insurance is in place to protect the person’s assets which fall under the deputy’s control
- Keeping careful accounts and reporting each year to the Public Guardian, who supervises all deputies.
There may be restrictions or conditions contained in the Deputyship Order which limit the deputy’s authority and the deputy must be mindful of these so as not to overstep their power. There are also some decisions which simply cannot be made by a deputy and, if a vulnerable person lacks capacity to make these, they must be referred to the Court of Protection for consideration.
- Making a will
- Making a significant gift
- Issuing legal proceedings
- If the vulnerable person is a trustee, making any decisions relating to that role; in particular, this commonly relates to selling property owned jointly by the vulnerable person and someone else.
If you would like any advice in connection with making a deputyship application, the duties of a deputy or making another specific application to the Court of Protection, please to a solicitor.