Tags – Role of a Deputy in the Court of Protection
The Court of Protection is a specialist court that makes decisions about a person’s health, welfare, assets and financial affairs, when they are not mentally stable enough to make decisions themselves.
In an ideal world, all adults would have the foresight to decide who will be their Lasting Power of Attorney (LPA), and will make decisions for them if they ever lost their mental capacity.
But, we don’t live in an ideal world and a lot of us have not given much thought to making LPA’s.
In this instance, where an LPA does not exist and someone’s mental health deteriorates, this is when the Court of Protection steps in.
Who is a Deputy?
A Deputy is someone who has been appointed by the Court of Protection to make decisions on a person’s behalf, who is not capable of making decisions because of their mental health.
Their poor mental health can be permanent or temporary, and be caused as a result of age related conditions, learning disabilities, brain injuries or substance abuse.
To be a deputy, you must be over the age of 18 and you can either be the person’s family member, friend or solicitor.
Secondly, you must be of a good character and in the case of dealing with financial affairs, have the required skills to make financial decisions for someone else; which is why there is a system of checks in place to ensure responsibilities are carried out sensibly and honestly.
Usually, the Court of Protection would appoint more than one deputy when it comes to dealing with property and finance, which can be a mix of family and professional deputies.
Duties of a Deputy
As set out in the Office of the Public Guardian’s Deputy Guidance, a deputy must always;
- Make decisions in the person’s best interests
- Make decisions that have been authorised by the Court order
- Adhere to the Mental Capacity Act’s principles
- Have a high standard of care when making decisions
- Act in good faith
- Not take advantage of the situation
- Financial deputies must keep accounts and keep the person’s money separate from their own
Failure to comply, and the Court of Protection can revoke the Order completely and sometimes make the Deputy liable to claims of negligence or charges against fraud.
When a deputy carries out their duties, they must always act in the person’s best interests.
These interests range from small decisions such as deciding what they eat to bigger decisions to do with financial transactions.
Regardless of the decision, understanding a person’s best interest can be quite difficult, which is why it’s important to consider a few factors before making any final choices.
Best interests include:
- Involving the person as much as possible in the decision making process
- Consider their feelings and beliefs that they may have expressed previously
- Assess if the person has the mental capacity to make the decision for themselves or if they will in the future
- Consult with others who are close to that person and ask for their thoughts and opinions
Overall, the Court will want to be reassured that the deputy has acted with reasonable belief, that the decision they made was in the person’s best interest, and would be required to show why they thought that decision was reasonable.
Deputy Annual Report
Deputies are required to provide an annual report to the court.
This report gives the court information about the decisions you have made on behalf of that person and also provides summary accounts for the court to approve.
Inside, all financial transactions must be recorded throughout the year, including any gifts made, care arrangements and if any property has been bought or sold; sometimes evidence is required, such as bank statements.
This ensures that deputies are being supervised by the Office of the Public Guardian (OPG), and that responsibilities are not being abused.
Limits to a Deputy’s Powers
A deputy’s powers need to be limited to some extent, in terms of what they can do and how long for.
Ultimately, deputies should only be able to make decisions when the person cannot, but if their mental health becomes better and the deputy is no longer needed, they should step down.
As such, there are restrictions to a deputy’s power put in place. A deputy cannot:
- Make decisions if the person is capable
- Restrain the person, unless it’s to prevent harm
- Go against any decisions made under existing agreements
It’s worth noting here, every deputy is different and therefore will have different restrictions.
And, if the court decides the deputy is no longer acting in the person’s best interest, they can cancel the appointment.
Mental health is complex; a person may be able to make decisions at a certain time but not at others, so deputies should never assume that it’s the same for all decisions at all times.
Instead, they should act with care and do what they possibly can to help the person make the final decision for themselves.
Please contact us today for more information.
Check our Court of Protection solicitors page in the meantime to see how we can help.
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