Deputyships explained – managing someone’s affairs after losing capacity
What is deputyship? Here we consider how Deputyships offer an alternative to making decisions on someone’s behalf when a Power of Attorney is not possible.
Why not a Power of Attorney?
A Power of Attorney is a great tool for individuals to permit another person or persons, usually family members, to make decisions and manage affairs on their behalf before or after they have lost capacity.
Although it is preferable to have a Power of Attorney appointed prior to losing capacity, many people find themselves in the unfortunate circumstance of having a family member lose capacity before being able to appoint someone. Additionally, some people are born with conditions which mean they shall never have capacity to appoint an Attorney.
What is a Deputy?
A Deputy can be appointed by a specialist court, the Court of Protection, under a Deputyship Order to manage the affairs of an individual once they have lost capacity.
There are two types of Deputy:
- Property and Financial Affairs
- Personal Welfare
An individual can apply to be a Deputy in one or both of these areas. If you do not wish to become a Deputy yourself, you can also have a Professional Deputy appointed.
You may wish to be appointed deputy for either an elderly relative, or one who’s lost capacity during the course of their life, alternatively you might wish to apply where a child never had capacity and you have exercised parental responsibility previously, but this has fallen away when they turned 18.
Finance and Property Deputies
This type of deputy will be responsible for the management of the individual’s finances and any property they own, day-to-day management of this type of Deputyship might include paying utilities for the individual, ensuring care fees are paid where applicable, ensuring any tax returns are paid and managing their benefits.
Where this type of Deputy is appointed, it is not uncommon that there is a Personal Injury Award paid to, the Deputy will therefore be expected to ensure these are managed effectively.
This type of Deputy is also able to deal with property for the person concerned, be that purchasing, selling or arranging rent of a property for them. However, specialist advice may be required due to the additional requirements when dealing with property transactions.
A Deputyship application for Finance and Property can be made regardless of that person’s age.
Personal Welfare Deputies
This type of deputy will be responsible for making decisions for the individual’s medical treatment and/or decisions regarding ongoing care arrangements, such as a residential care placement.
There are additional considerations when deciding if it is necessary to apply to be appointed this type of Deputy, as the Mental Capacity Act 2005 (“MCA”) will often need to be taken into account. If decisions are to be made regarding a specific course of medical treatment or care, this can often be dealt with by making a Best Interests decision using the five statutory principles contained within the MCA.
Where there is a disagreement as to a specific treatment or care plan, the Court of Protection can make a decision for the person concerned as to that issue rather than appoint an ongoing Deputy.
Where you may wish to apply for a Personal Welfare Deputy are for ongoing care arrangements, where a young person in concerned, this may include where they attend school and what type. Where it relates to an older person, this might be to determine care home preferences.
It should be noted however that where the circumstances concern someone under the age of 16, a Personal Welfare Deputy cannot be appointed.
Should you wish to be appointed as a Personal Welfare Deputy, you must also seek permission from the court to do so where required.
What happens when I’m appointed?
Once you are appointed, you will be provided with the Deputyship Order made by the court, this will set out what decisions you can and cannot make for the person you have been appointed for. This will be received after a security bond is set up for a Financial and Property Deputy where directed by the Court.
Should any later decisions need to be made which are not covered by the Order, then a further court order will be required, this is most often the case where you wish to buy or sell property for the individual.
You should also register the deputyship order with the relevant organisations such as utility companies and banks, you may also wish to open a deputy bank account for them to maintain or separate out funds.
As a Deputy, you will be supervised by a body called the Office of the Public Guardian (“OPG”), the form of supervision will depend on the circumstances of the person. However, generally, you may have supervision visits by the OPG to ensure you are aware of the obligations of being a Deputy and will need to submit a yearly Deputyship Report detailing the decisions made and, where applicable, the finances of individual.
Applying to be a Deputy
Should you wish to become a Deputy, the application must be made to the Court of Protection by completing the relevant forms and attaching relevant information such as references and witness statements.
When applying, you must also ensure the correct formalities are adhered to, such as notifying relevant individuals of the application.
How we can help
The Court of Protection Team has a long history of supporting those who lack capacity and their family members.
The team can advise and support you in making the application by preparing the relevant forms to be appointed as a Deputy in either one or both categories.
Additionally, a number of our Partners can act as professional deputies where financial and property deputies are required, ensuring effective day to day management for the finances of a loved one where they do.
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