When someone is unable to make important decisions for themselves due to mental incapacity, it can be challenging for their loved ones to know what to do. When someone does not have the requisite capacity to put in place a Lasting Power of Attorney, it can leave loved ones thinking “what now?”.
This is where the Court of Protection steps in. The purpose of the Court of Protection is to help protect vulnerable individuals by ensuring their best interests are always the centre point of any decision making. In situations where due to their lack of capacity, an individual is unable to make decisions for themselves, the Court of Protection may appoint a deputy to manage their affairs. We take a look at the roles and responsibilities of a deputy in the Court of Protection.
| What is a Deputy?
A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who cannot make decisions for themselves. The Court appoints deputies for various reasons. For example, managing financial affairs, making health and welfare decisions, or both.
Deputies can be family members or friends, or they can be professional deputies, such as solicitors or accountants.
| What can a Deputy do?
1. Manage financial affairs of the vulnerable person.
Deputies can manage the individual’s finances. This may include handling bank accounts, paying bills, managing investments, and dealing with property. They can also make decisions about buying or selling assets.
Some financial decisions, such as selling a property, are not always automatically granted by the Court. So it is important to carefully check the Court Order to make sure that these powers are authorised and make any additional applications to the Court to apply for their permission make these decisions.
2. Make decisions regarding Health and Welfare
Depending on the type of Order the Court grants, deputies can make decisions about the individual’s health care. This can include choosing medical treatments, managing personal care, who should have contact with the individual and deciding on living arrangements.
3. Legal and administrative matters
Deputies can handle legal and administrative tasks on behalf of the individual. For example, applying for benefits, managing tax affairs, and dealing with legal claims.
4. Act in best interests
Deputies must always act in the best interests of the individual. This includes considering their past and present wishes and feelings, as well as their needs and preferences.
5. Regular reporting
Deputies are required to provide regular reports to the Court of Protection to ensure transparency and accountability .
| What can’t a deputy do?
1. Make a Will
Deputies cannot create or change a will for the individual automatically. If a new Will is sought or if a Will needs to be amended on behalf of the individual, the deputies will have to apply to the Court separately to request their permission to create or amend a Will (known as a Statutory Will).
2. Make decisions about certain matters
Deputies cannot make decisions about matters that are outside their scope of authority as specified by the Court. For instance, if appointed only for financial matters, deputies cannot make decisions about health care or welfare. It is important to refer to the Court Order to make sure you are only making decisions you are authorised to make.
3. Act outside the court’s guidelines
Deputies must follow the guidelines set by the Court of Protection. They cannot make decisions that are not in line with the Court’s instructions or the principles of the Mental Capacity Act. You can view these guidelines here.
4. Use funds for personal benefit
Deputies must not use the individual’s money or assets for their own benefit. A deputy must keep personal finances entirely separate from the individual’s finances and avoid any conflicts of interest.
5. Ignore the wishes of the individual
Deputies must always consider and respect the wishes and feelings of the individual to the best of their ability. They cannot make decisions that go against the person’s known preferences or best interests.
| Responsibilities and best practices for deputies
• Transparency
Deputies must maintain transparency in their actions and decisions. Regular and accurate reporting to the Court of Protection is required.
• Record keeping
Keeping detailed records of all financial transactions and decisions made is essential for accountability and for reporting to the Court. Deputies must make sure that processes are in place for regular internal audits of case files. If any actions are needed as a result, these must be completed as soon as possible.
• Seeking advice
Deputies should seek professional advice when necessary, especially on complex financial or legal matters.
• Acting responsibly
Deputies must act responsibly and diligently, always keeping the best interests of the individual at the forefront of their decisions.
Understanding the roles and responsibilities of a deputy is crucial for anyone considering or already fulfilling this role. Being appointed as a deputy in the Court of Protection is a significant responsibility that requires a clear understanding of the roles and limitations associated with the position. If you are considering becoming a deputy or need guidance in your role and responsibilities as a deputy, our team is here to provide advice and support to ensure you fulfil your duties efficiently and compliantly. Call us on 0800 988 7756 or make an appointment online.