If someone can’t make decisions for themselves at a specific time, whether this is caused by a serious injury, dementia or a learning disability, they are considered to ‘lack mental capacity’. Authorised by the Court of Protection, a deputyship order can designate a person known as a deputy to make decisions on their behalf.
A deputy is different to an appointee, who only looks after benefits. They can make decisions for the person relating to their pension, their property, their medical treatment and how they are looked after.
Deputies are supervised by the Office of the Public Guardian (OPG) to ensure they are meeting standards and can be visited by the Court of Protection. The OPG can advise, support and revoke deputyship. If a deputy ever has doubts or conflicts of interest, they can also apply to Court for guidance.
Who needs a deputy? – Mental Capacity Act 2005
The Mental Capacity Act of 2005 states every adult has the right to decide. Therefore, everyone is assumed to have capacity until proven otherwise. Before a deputyship order is issued, the person must be given appropriate help before it is decided they are unable to make decisions.
Stating a person is making unwise or ‘eccentric’ decisions for themselves is not grounds for the need of a deputy, as it is within their rights to do so.
If it is proven that a person lacks mental capacity, a deputy can be appointed. Anything done on the person’s behalf must be in their best interest, and the least restrictive choice of basic rights and freedoms.
What are the different types of deputyship order?
There are two different types of deputies: ‘Property and Financial affairs deputy’ and ‘Personal Welfare deputy’.
A Property and Financial affairs deputy can pay the bills on behalf of the person and arrange things such as their pension.
A Personal Welfare deputy is for people over the age of 16 and can make decisions relating to their medical treatment and how they are looked after.
Who can be a deputy?
To be a deputy, you must be over 18. Usually, a deputy is a friend or relative of the person who needs assistance, known as a ‘lay deputy’.
The court can appoint two or more deputies, and they can take the place of one or both types of deputies. When there is more than one deputy, they can act in joint deputyship, where all decisions are agreed upon together. Alternatively, they can act severally, where decisions can be made without each other.
Alternatively, someone can be paid to act on behalf of the person, such as an accountant, a solicitor, or a local authority representative. The Court of Protection can also appoint a specialist deputy, known as a ‘panel deputy’, which is an approved law firm or charity.
If no family is available, willing or able to act as a deputy, the court can appoint a ‘public authority deputy’, such as a local authority or health body. If the person has no relatives able to be a deputy, and the person has more complex issues, a ‘professional deputy’ can be appointed.
What are the key responsibilities of a deputy?
When issued a deputyship order, they must remain deputy until the court order is cancelled or has expired. If the court order needs to be renewed or changed, the deputy must apply to the Court of Protection.
For every single decision a deputy makes, they must always consider the mental capacity of the person at the time, as the capacity and ability to decide is not the same for every scenario.
All decisions must be made in the best interest of the person. It is important to base it on past decisions, seek advice and ensure a high standard of care. The Court of Protection can visit the deputy at any time to make sure these standards are being met. When a decision is made, it must be explained to the person in the best way possible for them to understand (e.g. use images, simple descriptors, etc.).
An annual deputy report must be sent to the Office of Public Guardian each year to explain all decisions made. To help with duties once appointed, a deputy can seek professional advice to alleviate the pressure.
What are the restrictions for a deputy?
When a person receives a deputyship order, the court will tell them what they can and cannot do. There are a few things a deputy cannot do on behalf of the person who ‘lacks mental capacity’:
- Make or amend their will/trust
- Physically restrain the person, unless necessary
- Contradict their attorney under Lasting Power of Attorney (LPA)
- Refuse medical treatment which keeps the person alive
- Decide who can and cannot communicate with the person
If the deputy is seen to be neglecting and mistreating the person, or breaching the restrictions, they can be fined and imprisoned for 5 years.
How long does it take to receive a deputyship order?
There is a stringent process relating to a deputyship order, to ensure that the person is receiving the best care possible. With this can sometimes come a long process.
Within a week of receiving the application to become a deputy, the court aims to send a stamped copy of the application within a week of receiving it. This is the consideration stage.
Within 14 days of this, the potential deputy must tell three people of interest to the person who ‘lacks mental capacity’. This may be a friend, family member, or carer.
7 days after telling each person, documents and forms must be completed confirming they have been made aware of this. There is a maximum of 3 months to complete this, or else the process must be restarted.
After that, each person of interest has 14 days to object to the deputyship order. After these 14 days, the potential deputy will be reviewed.
How much does it cost to become a deputy?
It costs £408 to apply to be a deputy, along with a £100 assessment fee for new deputies. If a court hearing is needed (which it often isn’t), there is an additional fee of £494.
Annual supervision fees must be paid, too. For minimal supervision (managing less than £21,000) the annual fee is £35, but for general supervision £320 is payable.
Additional charges of £5 are necessary for a copy of the court order.
Reasonable and legitimate expenses, such as travel, postage and phone call costs, can be reimbursed.
A deputy can claim refunds in certain situations, which can alleviate some financial burden of the deputyship order. Depending on the person’s income or benefits, exemptions and reductions in fees can be granted. Usually, fees are recovered from the funds of the person.
The Office of the Public Guardian advises when these amounts are due, and how they need to be paid.
How we can help
Deputyship orders can seem complex and intimidating. With different application processes for the different deputy types, it can be helpful to seek advice.
Our team are on hand to offer legal advice and guidance with deputyship orders.