If a loved one lacks mental capacity and therefore cannot make decisions for themselves, you may need to be appointed a deputy by the Court of Protection to allow you to make decisions on their behalf.

Donna Rowland, an Associate in the private client department at WBW Solicitors in Newton Abbot, outlines what is involved if you are appointed as a deputy.

People may lack mental capacity if, for example, they have a serious brain injury or illness, dementia, or severe learning disabilities.

There are two types of deputy:

  • a property and financial affairs deputy – who looks after someone’s financial affairs such as paying their bills or managing their pensions; and
  • a personal welfare deputy – who makes decisions about medical treatment and how someone is looked after.

As a deputy you will be empowered to make decisions on their behalf only when they are unable to do so; there may be times when they are capable of making decisions for themselves, so you must consider someone’s level of mental capacity every time you make a decision.

You can only apply to be a deputy if you are 18 or over. Property and affairs deputies must have the skills to make financial decisions for someone else.

Two or more deputies can be appointed for the same person. If you are not the only deputy you need to tell the court how decisions will be made. This could either be on the basis that all decision must be jointly agreed (joint deputyship), or that deputies can make decisions on their own or with other deputies (jointly and severally).

When you are appointed as a deputy, the Court of Protection will give you a list of what you can and cannot do. In any case, when you are making a decision for someone, you must:

  • ensure it is in their best interests;
  • consider what they have done in the past;
  • apply a high standard of care – this might mean getting advice from professionals such as doctors;
  • help the other person understand the decision;
  • send an annual report to the Office of the Public Guardian each year explaining the decisions you’ve made

You must not:

  • restrain the person, unless it is to stop them coming to harm;
  • stop life-sustaining medical treatment;
  • take advantage of the person’s situation by, for example, profiting from a decision you take on their behalf (you may be prosecuted if you misuse the person’s money);
  • make a will for someone, or change their existing will;
  • make gifts unless the court order says you can, or hold any money or property in your own name on the person’s behalf.

You must tell the person lacking mental capacity that you are applying to be a deputy, explain what this will mean for them and tell them where to get advice if they want to discuss the application. You must also inform them once the court order is made.

You must pay a fee to apply to be a deputy and a supervision fee every year after you have been appointed. You may also have to pay to set up a ‘security bond’ before you can be appointed as a property and affairs deputy. This is a type of insurance that protects the finances of the person you are acting for.

You will get official copies of the court order confirming your appointment as a deputy which can be sent to people and organisations to allow you start acting on the other person’s behalf.

New deputies get a ‘general’ level of supervision from the Office of the Public Guardian for their first year. A Court of Protection visitor may check that you understand your duties and are carrying them out properly.

If you no longer want or need to be a deputy, you will need to make an application to the Court of Protection. You cannot stop being a deputy until you have got a court order.

For more information on becoming a deputy, or any other private client issue, contact Donna Rowland at WBW Solicitors in Newton Abbot on 01626 202416 or email donnarowland@wbw.co.uk

WBW has offices in TorquayPaigntonNewton AbbotExeterBovey Tracey,  Exmouth,  Honiton,  Sidmouth,  Launceston,  AxminsterChard and Seaton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.