When an individual has lost capacity (a protected party), and has not executed a power of attorney, it is possible for a relative or close friend or for a professional to apply to the Court of Protection to become that person’s deputy. There are two different deputyship orders that can be obtained – property and affairs (by far the most common) and health and welfare (a rarity, only granted in exceptional cases).
Anybody aged 18 or over can become a deputy although there are certain criteria when applying – for example, people with criminal records including convictions for dishonesty, and individuals with a sketchy insolvency history may not succeed. There can also be instances where the individual applying to become a deputy is not favoured by other members of their family, and those people may contest the deputyship application.
Court-appointed deputies have responsibilities to ensure that they act in the protected party’s best interests, and they must account annually to the Office of the Public Guardian (OPG) for their activities on the protected party’s behalf. The OPG will usually judge the deputy’s activities against its own standards of conduct. However, although standards have been in place for a long time, these have recently been updated by the OPG because of some areas of ambiguity, and a lack of direction for lay deputies (i.e. non-professional deputies such as children of the protected party or their spouse).
The new standards include certain changes and these have been added to the OPG’s website.
For ALL lay deputies, the key changes to look out for are as follows:
- A deputy’s overall conduct and suitability are measured according to criteria – they are expected to:
- have “enough knowledge” of the Mental Capacity Act 2005 and the Code of Practice to carry out their duties;
- have an understanding of their obligations under the deputyship order;
- submit annual reports to the OPG;
- pay the OPG’s fees on time;
- pay the annual premium for the security bond, and apply for the level to be raised if the OPG directs them to;
- avoid and declare any conflicts of interest;
- act impartially;
- apply to Court to end the deputyship if the protected party regains capacity;
- consider whether the protected party should have an appointee if the protected party only receives state benefits; and
- tell the OPG of changes in their own circumstances.
- Deputies must pay close regard to the best interests principles in section 4 of the Mental Capacity Act – a guide to which can be found here
- Deputies should visit the protected party as often as necessary and certainly at least once a year.
Property and affairs deputies must pay close regard to the below:
- In terms of financial management, deputies must:
- Apply for benefits within three months if needed and review those benefits annually;
- Keep the protected party’s funds separate from the deputy’s funds (unless the parties have a long-standing arrangement i.e. married couple/civil partners);
- Try to get the best possible return on any savings with the least amount of risk, and use cost-effective measures to save money;
- Ensure all taxes are paid on time and returns etc filed;
- Ensure all debts are paid on time; and
- Ensure the protected party has an adequate personal allowance.
- The Deputy must keep all invoices and receipts, and keep records of all financial decisions along with explanations for any significant changes;
- The Deputy must ensure the protected party’s property is secure, insured, and only sold if it is in the protected party’s best interests and if they have authority under the deputyship order;
- Deputies must let the OPG know if the protected party or the protected party’s property is subject to any police investigation, or if there are any concerns over the actions of another deputy.
For health and welfare deputies, the below obligations will apply:
- They must justify decisions about where the protected party should live to the OPG;
- They cannot restrict anybody’s access to the protected party, and can only do so if the Court has made an order under section 20 of the Mental Capacity Act;
- They must report to the OPG if any significant decisions are taken in relation to medical treatment.
How can Nelsons help
If you have any questions regarding the subjects discussed in this article, please contact a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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