Court of Protection – Who can be appointed as a deputy?
Posted:24th August 2022
What is a deputy?
A deputy is appointed by the Court of Protection when someone “lacks mental capacity” to be able to handle their own health or financial affairs. This means that they are unable to make decisions for themselves perhaps because of an injury, illness, dementia, or due to serious disabilities.
There are two types of deputies for different types of decisions:- A property and financial affairs deputy and a personal welfare deputy
A deputy can therefore be appointed to make decisions about a person’s property and financial affairs or their personal welfare when there is not already a power of attorney in place.
Who can be a deputy?
Any adult with mental capacity (over 18) can be a deputy, and can approach the court to apply for the role. The court would typically look to family members in the first instance. There are generally four different categories of deputies that may be appointed by the Court of Protection:
- Lay Deputies – friends and family of the person who lacks mental capacity
- Professional Deputies – individuals who are paid for their role as deputy (for example, accountants or solicitors)
- Public Authority Deputies – when the court appoints a local authority or health body as the deputy
- Panel Deputies – a deputy appointed by the court when there is no one else suitable to take on the role
Friends or family
Friends and family members can be appointed as deputies if they have the required skills to make decisions on behalf of their loved ones. It can be easy to blur the line between taking on the role of deputy and being there for the individual as a close relation. But with this said, it is important that people take their role seriously because they could be held personally liable if they do not act according to their duties.
Being a deputy demands a different type of responsibility, you’re responsible for helping some make decisions or making decisions on their behalf. You must consider someone’s level of mental capacity every time you make a decision for them, you cannot assume their capacity is the same at all times for all kinds of things. Having a duty of care therefore means that deputies must take extra care when making decisions, they must follow the Code of Practice of the Mental Capacity Act 2005 and work in the best interests of the individuals. The court will, within the terms of the Order appointing the deputy, say what the deputy can and cannot decide on, and the deputy must not overstep that authority.
In addition, they must ensure that both their property and finances are separated and that they do not overlap. For instance, the deputy cannot accidentally use the other person’s account to pay for their own shopping.
This is why not every family member or friend is suited to being a deputy, they must be able to separate their relationship and their responsibilities, understand their duties very clearly, and be responsible for important decisions.
Professionals are being paid to be deputies and therefore they are held to a higher standard of care than deputies that are not being paid.
Where a professional is appointed as deputy, they must show that they have a reasonable level of professional skill, and the court must be satisfied that there is no conflict of interest between their role as a deputy and as a professional. Professional deputies are usually appointed in complex matters.
What qualities must you have to be a deputy?
Being appointed as a deputy is not as simple as it sounds, the court will need to establish whether you have the required skills that are suitable for the role. Above all, they must be reliable and trustworthy.
Being a deputy is a very important and responsible role and takes a certain type of person to fulfil it. For instance, if the deputy is appointed as a property and financial affairs deputy, they will need the skills to be able to keep financial records, making budgeting decisions and have the competence to carry out property and financial tasks.
A deputy must be able to take account of the person’s best interests and take initiative by applying a high standard of care. This could involve contacting appropriate organisations such as doctors, local authorities, lawyers, or accountants to gain further information or advice about the individual’s situation to ensure the best decisions are made.
In addition, a deputy should be able to help the person understand the decisions they are making on their behalf as best they can.
Any decisions that are made must be included in the annual report to the office of the Public Guardian who supervise deputies and guardians appointed by the courts, and make sure they carry out their legal duties
If you have any questions regarding deputyship or wish to change deputies, don’t hesitate to get in touch with us on 0191 249 4555 or email us at [email protected]