Written by Deirdre Barnes
What is the Court of Protection?
The Court of Protection is a specialist Court that makes decisions for people who are unable to do so for themselves and also appoints someone (called a Deputy) to act for people who are unable to make their own decisions. These decisions are for issues involving the person’s property, financial affairs and health and welfare.
Who can become a Deputy?
- A Deputy is usually a family member or a close friend of the person who needs help making a decision.
- A Deputy can also be a professional such as a Solicitor or an Accountant.
- Any Deputy must be over the age of 18.
- Ultimately the Court of Protection will decide who can be a Deputy – if there is no one willing or able to act then the Court may appoint a member of its panel of professional deputies.
How you can become a Deputy
- You must apply to or be appointed by the Court of Protection. An application needs to be made on the prescribed forms and these vary depending upon whether the applicant is to be appointed as a Deputy for Property and Affairs or as a Deputy for Health and Welfare.
- The Court will use the information you provide in the Deputies Declaration to assess your suitability to be a Deputy.
- You will need to disclose all your personal details and your connection to the person to whom the application relates. This will include details of your personal circumstances, your occupation, whether or not you have been convicted of a criminal offence, your financial circumstances including details of your personal bank, whether or not you have ever been refused credit, do you have outstanding judgement debts, have you been declared bankrupt or are you a debtor under an IVA (Individual Voluntary Arrangement).
- You will be asked to give various undertakings including an agreement to have regard to the Mental Capacity Act 2005 (“the Act”) and the Code of Practice and its main principles, to act with due care skill and diligence, to act with honesty and integrity and to keep information about the person to whom the application relates confidential, to comply with directions given by the court, to visit the person to whom the application relates regularly and to take an interest in their welfare, to co-operate with representatives of the court, to maintain the property of the person to whom the application relates.
- If the court is satisfied that you are a suitable person to be a Deputy, they will send you an Order – a legal document that details the decision that they have made appointing you as a Deputy. The Order will explain what decisions you are legally allowed to make for someone else. Those powers will be decided by the Court of Protection based on the other persons needs including making decisions about their money and healthcare.
Your responsibilities as a Deputy
The decisions you make as a Deputy can have a big impact on the other person’s life and as such you should:
- Only make decisions in their best interest.
- Only make the decisions that the Court of Protection says you can make.
- Apply a high standard of care when making those decisions.
What decisions should I make and when should I make them?
Your actions and decisions as a deputy will depend upon what the court has specified that you should do in the Order appointing you. Before making a decision, it is important to consider whether the person could make that decision themselves with some assistance or under certain circumstances and you should consider whether:
- There are any particular times of day or location that the person feels more at ease and is more able to make decisions.
- The information could be communicated in a more understandable way, for example using pictures, photographs audio video or sign language.
- All choices and alternatives have been communicated to the person.
- Anyone else, such as a relative or friend could assist or support the person to make a particular choice or express a view.
How do you assess someone’s capacity to make a decision?
You are not expected to be an expert in assessing capacity, however, when making a decision on behalf of someone else you must reasonably believe that the person lacks capacity to make that decision or give consent at the time it is needed. The steps you take to determine whether the person lacks capacity will depend upon the individual’s circumstances of the case and other factors such as the urgency of the decision. You do not necessarily need to follow formal processes such as involving a professional to make an assessment, however, if somebody challenges your assessment, you must be able to describe your reasoning and why you believe the person lacked capacity to make the decision in question.
How do you decide what is in someone’s best interest?
Everything done to or on behalf of a person who lacks capacity must be in that person’s best interest. This is the same whether the decision is small e.g. what to wear or big e.g. deciding on a particular medical treatment. Working out what is in someone’s best interest can sometimes be difficult and the Act requires you to follow certain steps to help you make that decision. If you follow these steps and do everything you reasonably can to work out what the person’s best interests are, you are fulfilling your obligation as a Deputy. Things you should consider include:-
- Involving the person who lacks capacity as much as possible in any act or decision.
- Considering any values, views, beliefs, wishes and feelings they may have expressed in the past.
- Consulting others such as family, friends, carers, Attorneys or other Deputies about their views on the person’s best interests.
- Identifying any other factors the person may have considered if they had the capacity to do so.
After considering the information you have available you then make your decision about what you think the person’s best interests are.
Chapter 5 of the Code of Practice has more detailed information about establishing best interests.
You should not make major decisions where there is a conflict between your personal interests and the interests of the person who lacks capacity e.g. if you or a member of your family wishes to purchase a property belonging to the person who lacks capacity you will need a Court Order authorising such a sale.
Am I protected from liability as a Deputy?
If you act within the terms of the Court Order that appointed you as a Deputy and comply with the Mental Capacity Act 2005 and the Code of Practice, it is unlikely that you would incur legal liability.
If you act outside the terms of your authority or do not carry out your responsibilities properly you will be held accountable for your actions e.g. if you fail to claim benefits to which the person is entitled or spend their money other than for their benefit, the court will consider that you have caused the person financial loss. Under these circumstances, the court may decide to enforce the security bond or authorise someone to bring an action against you.
If you enter into a transaction with a third party on behalf of a person who lacks capacity e.g. you hire a workman to repair the house, you are not personally liable for payment. You are considered the agent and the person is the principle who is liable for payment.
Will I receive support and supervision as a Deputy?
The Office of the Public Guardian is responsible for ensuring that Deputies act in the best interests of the person who lacks capacity and follows the directions of the court. The level of support and supervision that The Office of the Public Guardian allocate to a Deputy is decided after carrying out an assessment of the individual circumstances of the case based on:-
- Complexity of the affairs of the person who lacks capacity.
- The types of decisions that need to be made.
- Care requirements of the person who lacks capacity.
- The relationship between the Deputy and the person who lacks capacity.
The level of supervision can range from close supervision, (involving regular contact with the Deputy) to periodical supervision with those deputies who manage limited assets or are professional panel deputies. Supervision may involve:
- The OPG providing ongoing support to you when carrying out your role.
- You submitting reports to The Office of the Public Guardian when the court directs you to.
- A court visitor checking how the Deputyship is being managed.
The level of support and supervision you receive will regularly be assessed to see if it still relevant to your circumstances.
You are permitted to employ professionals such as solicitors, accountants and regulated financial advisors to assist you in carrying out your role as Deputy. Fees are payable from the funds of the person who lacks capacity. You are not permitted to delegate your responsibilities to another person.
Can I recover my expenses?
You are allowed to be reimbursed for reasonable expenses incurred when acting as a Deputy, including the cost of telephone calls, travel and postage. Expenses are not payment for your time spent white acting as a Deputy – this is called remuneration and can only be claimed if the Court Order specifically states it. If you wish to receive remuneration you should ask the court to consider this in your initial application.
The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.
It is expected that you will only claim reasonable and legitimate expenses. If your expenses are considered unreasonable you may be asked to repay them and in extreme cases the Office of the Public Guardian may apply to the court to cancel your appointment.
When do a Deputies powers end?
These include:
- When the person who lacks capacity recovers sufficiently to make their own decisions, although the Court Order will remain in force unless it expires or is discharged by a subsequent Court Order.
- When the Court Order expires it becomes invalid. If the person who lacks capacity needs decisions made on their behalf after this date when the Deputy or someone else must apply for a new Order.
- When the person who lacks capacity dies, your role as a Deputy ends.
- If the Deputy dies during the term as Deputy their legal representatives must report the death and submit a final account of the Deputies dealings and transactions.
- If the Deputy retires, if he is unable or no longer wishes to continue as a Deputy in which case an application to the court to have the Order discharged must be made.
- The court may discharge the Deputy. There are different reasons why the court may make an order to end your role as a Deputy – you may have requested this or the court may have reason to believe you have not carried out your duties correctly or you have not acted in the person’s best interests.
If you require further information please contact our Court of Protection team: Deirdre Barnes or Kirstie Fernandes on 020 8301 4884.
Disclaimer This note is written as a general guide only. It is not intended to be comprehensive or to provide any specific legal advice and should not be acted upon or relied upon as doing so.