If an individual lacks the capacity to make decisions for themselves, the court may appoint a lay person as Deputy or a Professional Deputy (such as a solicitor) to act on behalf of the individual. A person may lack capacity due to a number of reasons, including dementia, learning difficulties, head injuries, stroke, or a mental health issue.
Background
The Mental Capacity Act 2005 tries to enable vulnerable individuals to make their own decisions wherever possible, but when this is not possible, it protects said individuals by outlining who can make decisions in certain situations.
The Court of Protection is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. The Court can appoint Professional Deputies and lay deputies to act for the benefit of the individual. These appointed deputies are then overseen by the Act and Office of the Public Guardian.
It’s useful to understand these terms from the offset, as they may appear throughout this article.
The role of a Deputy
Your exact role and responsibilities will depend entirely on the Court of Protection Order that appointed you. With this appointment you should have received a guide which clearly outlines the situations where it is appropriate for you to make a decision on behalf of another.
When you’re making a decision on behalf of another, you should be certain that they are unable to make that decision themselves. You should also be certain that you’re acting in that person’s best interests, and the Code of Practice (which informs all activity carried out by Professional Deputies) gives a number of considerations you can use to check that you’re doing so. Before making the decision, consider:
- Values, beliefs, views, and wishes that the individual may have expressed in the past
- Consulting others where required: eg. Legal professionals, family members, and carers
- Identifying any other elements the individual would themselves have considered if they did have full capacity
- Is there any conflict of interest in your making this decision?
- Involving the individual in the decision-making process, if that is beneficial to them or if they are able to have any input
It’s also important to know when not to make a decision. As a Professional Deputy, you should not make a decision if:
- The decision you wish to make is not outlined in the Court Order
- There is a conflict of interest
- You believe that the vulnerable individual could make the decision themselves
If you don’t have power to make a certain decision, you can apply to the court to change your Deputy powers.
How long does the role last?
There are a number of circumstances under which the role of a Deputy would end. These include:
- The court order has ended: Court Orders can have an expiry date. Once that date has passed, you will no longer be able to make a decision on behalf of the individual. You can reapply for a new order to continue making decisions on behalf of another
- The Deputy dies: If you die during your time as a Deputy, your personal representative(s) or Executor(s) should inform The Court immediately
- The Deputy retires: You can retire from your post as Deputy. You may wish to apply for another to take over your responsibilities for the individual
- The person who lacks capacity recovers: If the person lacking capacity recovers to the point where they can make decisions, your Court Order will end, subject to the Court’s approval
- The person who lacks capacity dies: In these circumstances, your role as Deputy ends. You should, however, let the Office of Public Guardian know as soon as possible, the administration of the estate will be taken over by the Personal Representative/Executor for the estate
- The Court discharges the deputy: If you ask to be discharged or you are found to have neglected your duties as deputy, you can be dismissed by the Court
The roles and responsibilities of Deputies are many and varied. They range from legal and financial decisions to decisions on personal welfare such as where the individual at the heart of the matter will live, what medical treatment they receive, and who they can have contact with.
If you need advice, wish to discuss the role of a Deputy, or are yourself thinking of taking Deputyship on for a loved one and are in need of legal support, get in touch with our Partner & Head of Private Client, at JPD@prosperitylaw.com or on 0151 909 8657 for a discreet consultation.
