Why set up a deputyship?
A deputyship maybe required for a person who lacks mental capacity and who has assets that need to be administered or decisions taken about their personal welfare.
For example, there may come a time when a person with dementia will need a Deputy to collect their income and benefits and sell assets in order to pay care home fees. Alternatively a person who has acquired a brain injury would need a Deputy to administer a court settlement to pay for an ongoing care regime, or make decisions about medical treatment.
A Deputy can be appointed by the court to act as:
- A Property and Affairs Deputy – making decisions about property and financial affairs, including the sale and purchase of that persons property
- A Personal Welfare Deputy – making decisions about health and personal welfare, including treatment options. However the Deputy cannot refuse consent to life sustaining treatment
A Deputy’s powers derive from the deputyship order made by the Court of Protection and the Deputy cannot exceed those powers. The order may give wide powers to the Deputy, or it could set limits to those powers, for example providing that large items of expenditure or investment cannot take place without further permission of the court.
The Deputy’s duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help him/her, without success
- A person cannot be treated as lacking capacity merely because he/she wishes to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom
In addition to following these general principles, the Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.
Any person over the age of 18 can be a Deputy. Any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become Deputy and these could lead to the application being refused.
In many cases a spouse, partner or close relative will be the Deputy. In cases where there is no-one able or willing to take the role then the local authority can do so (in low value estates) or a professional Deputy (eg a solicitor) can be appointed. Where the person lacking capacity has a large estate then a professional Deputy will almost always be appropriate.
When a deputyship order is made, the Office of the Public Guardian will allocate the deputyship to a category of supervision. This may range from close supervision (particularly for new cases in the 1st year or two) to a light touch supervision in straightforward cases. The Deputy’s reporting obligations will depend on the level of supervision.
A deputyship order is terminated when the person lacking capacity dies or recovers capacity, or if the order is limited in time and expires. It can also be discharged by order of the Court of Protection or on application by the Deputy, if he wishes to retire or resign.