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Common questions and misconceptions about the role of Deputies

Posted: 06/12/2023

Definition of a Deputy and FAQs

Who/what is a Deputy?

A Deputy is a court-appointed person who manages the affairs of a Protected Party (P). P is someone who the Court of Protection (COP) has determined does not have the requisite capacity to manage their affairs and their circumstances are such that a deputy is required to make decisions in their best interests for them on an ongoing basis.

Is a deputy needed in litigation matters if I have a litigating solicitor?

Yes, as the roles they play are different. The job of the litigating solicitor is to deal with the claim for personal injury/clinical negligence. The job of a deputy is to manage P’s money (including interim payments) in P’s best interests during the litigation process, if necessary, and after the claim has been settled.

Is there a need to appoint a professional deputy?

The size and complexity of P’s financial affairs usually determines whether a professional deputy will be required. Professional deputies are also often appointed where there is no family member willing or able to act as deputy.

Where there is ongoing litigation, it is quite common for a professional deputy to be appointed as they usually have the Court of Protection expertise required for these more complex matters. During the litigation, it is common for the litigator and professional deputy to work closely together.

Is a doctor the only person who can assess someone's capacity?

For the Court of Protection to make a deputyship order, an application has to be submitted by the proposed deputy or their legal representative which includes evidence of a person’s capacity. This is known as the COP3 form which needs to be completed and signed off by an ‘appropriate assessor’ which not only includes doctors but can also include social workers, psychiatrists and professional mental capacity assessors.

Deputy’s authority

Deputyships authorise you to make decisions regarding Ps hospital treatment and end of life care.

Deputies can be appointed for property and financial affairs and for health and welfare. While you can have one or the other or both, unless you are also appointed as someone’s deputy for health and welfare, as a financial deputy you cannot stray into making decisions about health, hospital treatment or end of life care unless you have authority to do that in some other capacity. An example of this scenario is if you are P’s parent and they are a child.

Deputies for Health and Welfare are bound by the same area of law that applies to deputies for financial affairs (including the Mental Capacity Act [2005]) which clarifies how decisions are to be made. The law provides that some decisions can never be made on behalf of someone who lacks capacity, for example providing consent on someone’s behalf to have sexual relations.

The Court of Protection will usually only appoint a deputy for Health and Welfare in certain circumstances such as there being doubt over whether decisions will be made in P’s best interests or someone needing to be appointed to make decisions over a period of time. It is also important to note that the COP cannot appoint a health and welfare deputy for a person under the age of 16 years.

Some misconceptions of a deputy’s authority

The Deputyship Order gives the deputy the authority to make all finance-related decisions for someone.

The Mental Capacity Act only gives the deputy authority to make decisions that P is deemed not to have capacity to make. As capacity is time and decision specific, just because P may lack capacity in one area does not automatically mean that they are unable to make any decisions. The presumption should be that P has capacity and not the other way around.

The deputy will also need to consider and respect P’s freedom to make unwise decisions where they have capacity to do so. The deputy should therefore act in a way which gives P the opportunity to make all the decisions within their capability. An example of this might be for P to manage a small amount of personal allowance through a cash card account.

The Deputyship order issued by the COP will set out what authority the deputy has for the management of P’s financial affairs. Significant decisions such as selling P’s house will usually require specific authority from the COP. Decisions regarding the use of P’s assets to benefit someone else also need to be carefully considered and an application will often have to be made to the Court evidencing the reasons why it is in P’s best interests to take a particular course of action.

If P’s house needs to be sold to fund P’s care, then you will need to show the Court that the right steps have been taken to address any questions that may arise about depriving P of their liberty.

Deputyships mean you can spend Ps money as if it were your own.

Deputyship orders do not give the deputy authority to spend P’s money as if it were their own. There must be good reasons for all expenditure which should always be done in P’s best interests and take into account the wishes and feelings of P. The deputy will need to account for all spending made on P’s behalf to the Office of Public Guardian (OPG) which supervises deputies throughout the deputyship.

A deputy’s decision automatically overrides that of P.

P’s wishes and feelings, past and present, should be taken into account by the deputy whenever decisions need to be made on their behalf. The deputy is also required to consider the views of others concerned with P’s welfare. If the deputy needs to make a decision with which P does not agree, then strong evidence will need to be recorded as to why this has been done. An example of this could be releasing funds to P that would put them at risk of significant harm through alcohol or substance misuse.

Management where there are joint deputies

The COP will often appoint more than one deputy and often this will include the appointment of a professional deputy and a lay deputy. If the deputies are appointed jointly, the Court order will specify which decisions have to be made together or joint and severally where one deputy can make some decisions and carry out some duties on their own. In any event, decisions between joint deputies need to be unanimous.

Professional deputies are usually appointed where P has substantial assets or there are particular complexities involved in P’s case. Some decisions made by deputies require the authority of the Court of Protection and all the deputies will need to ensure that they adhere to their remit of authority as detailed in the Deputyship order.

Where lay deputies wish to make certain decisions such as wanting to sell P’s property or making a significant gift, they typically prefer the application for authority to be done by the professional deputy who will usually have the required knowledge and drafting expertise.

Seeking legal advice

Where there is no professional deputy there is nothing to stop lay deputies from seeking ad-hoc advice and input from legal professionals to ensure that they adhere to the role and responsibilities of a deputy. For example, they may wish to instruct a professional to assist with completing the yearly report for the OPG.

Considering the wide scope of any person’s life, it is perhaps unsurprising that numerous matters requiring legal advice may be touched upon during the course of a deputyship such as:

  • personal injury/clinical negligence (dealing with a litigation claim)
  • conveyancing (buying a house for P)
  • employment law (the management of P’s care team)
  • welfare and community care law (dealing with benefits and EHCPs)
  • construction (adapting a house for P).

Consequently, it is very likely that legal advice will be needed at some point during the life of a deputyship.

Are Deputyship’s the same as Lasting Powers of Attorney?

Although there are many similarities between Deputyships and Lasting Powers of Attorney (LPAs) there are material differences between the two, mainly arising from the fact that LPAs are made by the donor while they have capacity and Deputyship Orders are issued after the person to whom they relate has lost their capacity.

LPAs relating to property affairs can be used from the point of registration regardless of whether or not the donor retains the capacity to make decisions about their property affairs. Deputyships are applied for on P’s behalf after they have lost capacity. While it is seemingly preferable for people to consider making LPAs (for example, during estate planning or drawing up wills), deputyships will often arise as a consequence of unforeseen events such as illnesses that affect capacity or losing capacity due to a catastrophic or life-changing injury.

Professional deputies are very expensive and can charge whatever they want.

Although professional deputies will charge for their services, legal expertise is often required to deal with more complex issues. Professional Deputies’ hourly rates are set by government guidelines and they either charge fixed rates set by the COP or submit their bills to the Senior Courts Cost Office (SCCO) for review.

The guideline hourly rates vary according to the level of experience of the professional dealing with the matter and the area in the country in which the law office managing the deputyship is based. These measures ensure that the costs of managing P’s affairs are carefully regulated.

Supervision of deputies

Does the Court of Protection supervise deputies?

Although the decision as to whether someone is deemed to lack capacity and the appointment of deputies rests with the Court of Protection, it is the Office of Public Guardian (OPG) which supervise deputies once they have been appointed. Deputies must account to the OPG at least once a year by completing an annual report which details all significant decisions taken and provides details of income and expenditure in the period.

As a deputy you have to account for everything you spend to the OPG.

While income, assets and expenditure will have to be detailed in the yearly account referred to above, receipts for small purchases – such as a coffee purchased by P - will normally not be required. However, it is recommended that careful records are kept in case the OPG requires more information following the submission of the deputyship report.

Practical deputyship management issues

A deputy needs to include P’s family and friends in all decisions made.

The law requires a deputy to take into account the views of anyone caring for or interested in P’s welfare in making best interest decisions but only if it is practicable and appropriate to consult them.

Where P has a deputy, they cannot manage any of their own money.

The deputy is required to manage P’s affairs in a manner that is the least restrictive and gives P the opportunity to make all the decisions they can and to be involved as much as possible in the making of decisions they are unable to make themselves. Examples of this could be allowing P to manage a small amount of personal allowance if they are able or to invite their input on a property purchase if a house is to be purchased on their behalf.

I support my family member/friend just as much as his paid carers, so the deputy should also employ me as a carer.

A deputy can pay family and friends on behalf of P for their time spent caring for P if it is considered that this is in P’s best interests. Family/friends can be directly employed by P through their deputy, self-employed or given a discounted payment not subject to tax and national insurance (referred to gratuitous care payment or a family allowance). The deputy will decide which option is in the best interests of P on a case-by-case basis and based on P’s individual circumstances.

Accounts are automatically frozen on appointment of a deputy.

Prior to notification of either a deputyship application or order, P’s bank accounts will run as normal including any direct debits or standing orders being paid. Once a deputyship order has been received from the COP, the deputy should notify any banks and other institutions such as the Department of Work and Pensions (DWP) so that the deputy can start managing P’s affairs. Bank accounts are not often frozen and the deputy will simply be named on the account as being able to manage the account on P’s behalf.

Who is the employer for P’s care team?

Although case managers and parents are often involved in recruiting and managing carers and carry out supervisions, check timesheets and organise the payroll, when a carer is employed, it is always P who is classed as the employer through their deputy.

This will be stipulated on the contracts and often on any paperwork relating to the carer’s contract of employment such as pay rise letters. The only time a carer would not be employed by P would be if they were working as self-employed through a consultancy arrangement or via a care agency which is instructed by P’s deputy.

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