Court of protection FAQs (part 2)

Following on from our previous Court of Protection FAQs where we looked at the basics of what a Court of Protection is, in part two we’re delving a little deeper into the specifics of a Deputy and what they do. 

If someone close to you has lost the mental capacity to make decisions for themselves, the Court of Protection can designate an individual to become a Deputy. This person then makes decisions and carries out tasks on the individual’s behalf. A loss of mental capacity could be the result of sudden-onset dementia, a traumatic head injury or brain damage, or a stroke.

Remember, Court of Protection decisions are not age-related, so a young person who has suffered a serious head injury or has been incapacitated may have a Deputy designated to look after their affairs for them. This could be a temporary or permanent arrangement, depending on the nature of the individual’s circumstances and whether they recover sufficiently to start making their own decisions once again.

So what is a Deputy? And what do they do? Here are the most commonly asked questions our legal experts encounter when discussing Court of Protection orders and the role of a Deputy.

Who can be a Deputy?

Anyone over the age of 18 can take the role of a Deputy. They do not have to be related to the individual and is most often a friend or family member. A court order is required for someone to become a Deputy, and it will depend on the relationship with the individual and the type of decisions you’ll be asked to make on their behalf. Medical evidence has to be presented to prove that the individual has lost the mental capacity to make decisions for themselves. This prevents a vulnerable person from being ‘railroaded’ into allowing someone else to take over their affairs for them. Evidence is usually provided by medical professionals who can give an unbiased appraisal of the individual’s mental capacity.

Taking on the role of Deputy is a complex and often life-long commitment. So it shouldn’t be entered into lightly or without careful thought.

What does a Deputy do?

A Deputy makes decisions for the person who no longer has capacity. The Court of Protection’s deputyship order will set out the deputy’s powers, which will differ depending on the person’s needs. Applications for financial and welfare matters are handled separately. The most common decisions will center around the finances of the individual, so ensuring that bills such as mortgages and rent are paid, that banking and financial issues are taken care of. For welfare matters, it is less common for a deputy to be appointed and instead the Court is more likely to keep the authority narrow, addressing a particular decision and providing judgement as to what should happen or giving an individual sufficient power to address the specific issue in question. Providing wider and more generalised powers in relation to welfare matters is often seen as being too overbearing on an individual. Instead the Court encourages general issues to be worked out at meetings by relevant interested parties at what are known as “best interests” meetings. Health and welfare decisions vary broadly from placement into residential care, from deciding on issues of life sustaining treatment. This demonstrates just how big a responsibility the role of Deputy is.

The Court of Protection will set out strict guidelines as to the type of decisions a Deputy can make. A Deputy must always make their decisions in the best interests of the individual and within the guidelines of the Mental Capacity Act 2005 Code of Practice. Deputies may have to report back to the court regularly so that the court can ensure the Deputy is carrying out their duties within the guidelines as laid out in the original order, whether any circumstances have changed (such as the recovery of an individual who may be now capable of making their own decisions again), or if an individual’s condition has deteriorated and further intervention is required.

When should a solicitor be a Deputy?

If large sums of money are involved or a person does not have any close friends or relatives to take on the role (or such appointment would be unsuitable due to likely conflict) then the court may appoint a solicitor to take the responsibility of Deputy. These individuals are often experienced in the role and know exactly what to expect and how to ensure the individual’s best interests are looked after. Court appointed Deputies are often the first port of call if an individual’s needs are extremely complex, or their estate is particularly large.

Are there any decisions a Deputy can’t make?

Deputies cannot make decisions that the person can make themselves. They also cannot make a will on behalf of the person, make large gifts on their behalf, put property in their own name or generally better their own position. They also cannot act as a trustee or make a decision to physically restrain an individual (unless it is to ensure they do not come to harm).

A Deputy’s authority doesn’t trump an attorney acting under a Lasting Power of Attorney but it would be unusual for the order appointing a deputy not to revoke an existing LPA. They cannot refuse consent to any medical treatment that may help keep the individual alive, and they cannot decide with whom the individual has contact.

Do Deputies get paid?

Deputies can be financially reimbursed for some expenses such as travel, telephone calls and postage. This amount is usually capped to £500. Any request for reimbursement above that amount has to be justified. Being a Deputy isn’t a ‘paid’ position, and there is no remuneration involved unless the order appointing the Deputy authorizes it. Often a professional deputy will use the services of a law firm who will be paid from the individual’s finances. These fees are typically assessed by the Court on an annual basis to ensure the deputy only recovers payment for work both reasonably carried out and proportionate to the individual’s financial circumstances.

It is essential a deputy acts within the best interests of the person and could face time in prison if they are found to be exploiting their position.

Can a deputy be changed?

If it is considered to be in the best interests of the individual it is possible, on application to the Court to have the deputy removed and replaced with someone else. There are financial consequences of this however and so care should be taken to ensure that it is worth doing.

If you’ve been asked to be a Deputy but aren’t sure if the role is one you can fulfil, talk to a Court of Protection legal expert for more guidance and information today.