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What is a Deputy?
When a loved one loses mental capacity, such as if they have dementia, a family member may need to step in to manage their finances or their medical treatment and care.
In the absence of Lasting Powers of Attorney (LPA) which can be set up in advance of the person losing mental capacity, the family member can apply to be appointed a ‘Deputy’ by the Court of Protection. This is a legal role with a breadth of responsibilities.
It’s crucial that these obligations are understood in order to act appropriately on behalf of their loved one and avoid common pitfalls.
What are the two types of Deputyship?
Personal welfare
This enables you to make decisions about a person’s medical treatment and care
Property and financial affairs
This means you can make decisions about a person’s money and property.
How do you become a Deputy?
There is a substantial application process to become a Deputy, which can take nine to twelve months.
The Deputy order outlines the powers of a Deputy. This depends on the type of deputyship.
If it is for property and financial affairs, it can range from claiming and overseeing benefits, pensions or income, paying bills and safeguarding and managing their property.
The application process requires evidence of the person’s lack of capacity and details of their finances to be managed to be provided to the Court.
The Court will also need details about the applicant Deputy.
The Deputy also needs to provide undertakings to the Court about how they will conduct their role, including their own financial standing and suitability to be appointed.
Who can become a Deputy?
Anyone over the age of 18 can become a Deputy, but there are exclusions.
For example, a history of financial difficulty or fraud may impact your ability to be appointed e.g. if you’ve entered an Individual Voluntary Arrangement or been made bankrupt.
To be a Deputy, you must take out a Deputy Bond. As a form of insurance a credit check will be required against the Deputy by the Bond company.
Due to the complexity of the role, it is common for Deputies to misunderstand or not be aware of their responsibilities. This can lead to issues such as exceeding the powers afforded by their Deputyship or failing to recognise that they now have a formal fiduciary duty towards their loved one.
What does a Deputy do?
Quite often, when the Deputy is a family member, distinguishing between the roles of a loved one and someone in a fiduciary position, can cause confusion. This can potentially lead to actions which exceed the terms of their Deputy order.
For example, if an individual becomes the Deputy of a parent who has lost capacity, the Deputy has no authority to make gifts beyond limited gifts on customary occasions. This applies even if the parent previously made regular and generous gifts.
If they did make such gifts, it would exceed the powers afforded to Deputies under section 12 of the Mental Capacity Act. This can lead to them being at risk of removal from their position.
Legal advice about gifts and the terms of a Deputy’s order should be sought to protect themselves and their loved one.
Why should a Deputy keep records?
It’s essential for Deputies to maintain clear records of the actions they take. This includes keeping receipts and noting bank statements.
Keeping records as they go is essential. As Deputies are required to report to the Office of the Public Guardian annually for all funds spent, actions taken and decisions made.
Although this may seem onerous, safeguarding the person in need and protecting their funds is rightly taken extremely seriously.
To support the understanding of their fiduciary role, Deputies should ensure they check and refer to the specific terms of their court order. They should also use of the in-depth guidance issued by the Office of Public Guardian once they’re appointed.
This breaks down the requirements of a Deputyship and provides useful guidance on acting in the individual’s best interests.
What if a property needs to be sold to pay for care?
If a property needs to be sold to meet the needs of an individual, it is likely a separate court application will need to be made, in addition to the Deputyship.
Such an application will require clear evidence of the sale being in the best interests of the person in need. This needs to be set out in a detailed witness statement.
If the individual has moved to full time residential care, evidence of the Deprivation of Liberty Safeguards documentation will need to be provided to the court for the sale to be authorised.
Make sure you understand what being a Deputy involves
Considering the sensitivity and breadth of the role, Deputies should consider taking legal advice early on. This will avoid confusion and provide support at what is likely to be a difficult time. It will also ensure a clear understanding of the role and responsibilities of a Deputy, so everything is in order at the outset.
Becoming a Deputy is an important role which should be carefully considered by anyone thinking about applying. To successfully fulfil the legal duty, Deputies need to understand that they are signing up to a role that will be supervised.
They will need to be ready to account for the decisions and actions they take and cooperate with the court and Office of the Public Guardian.
Overall, understanding the role and what it involves, adhering to the court order and being transparent throughout will ensure the best interests of those in need of support are at the core of the Deputyship.
Donna Holmes at Anthony Collins is an experienced advisor to families wishing to safeguard and protect loved ones who lack capacity and may be entitled to means tested benefits. Her expertise includes acting as a financial deputy for over 150 clients, advising on a range of Court of Protection matters, the preparation of wills, Lasting Powers of Attorney, and the creation and management of a range of trusts (including personal injury trusts).
