What is a deputy?

A deputy is a person or legal entity such as a trust corporation that is appointed by Order of the Court of Protection to make decisions for a person (known as the protected party) if they lack capacity to make decisions for themselves.

A person may lack capacity to make decisions for a number of reasons but most commonly these include; an acquired brain injury, a serious mental health condition or age-related cognitive decline.

A deputy may be a relative or a friend, a professional (such as an individual solicitor), or a trust corporation.  An application is made to the court and if the court approves of the proposed deputy a Deputyship Order will be made appointing them to this role.

What are the two types of Deputyship Order?

There are two types of deputyship: one for property and financial affairs and another for health and welfare.  These naturally deal with very different decisions.  The appointment of a property and financial affairs deputy is far more common.  The Deputyship Order will set out the extent of the deputy’s powers.

A health and welfare deputy will usually have the power to make decisions about medical treatment, where someone lives, or the way in which a person is cared for.

A financial deputy’s authority would include paying a person’s bills, receiving and organising their income, buying and selling property, completing tax returns, and dealing with investments.  Professional deputies tend to be given more autonomy than a family member, as they are likely to have more experience in acting in that role.

What are a deputy’s responsibilities?

It is very important that, no matter the type of decision being made, the deputy always acts in the best interests of the protected person.

A deputy also has various other responsibilities and, when managing someone’s financial affairs, these duties might include:

• Consolidating the person’s assets where appropriate and ensuring that they are kept separate from anyone else’s property;
• Acting only in connection with matters where the vulnerable person lacks capacity to make a decision and supporting the person as much as possible with decision-making;
• Working closely with the vulnerable person, their family, any carers and other professionals to effectively administer their affairs;
• Ensuring insurance is in place to protect the person’s assets which fall under the deputy’s control;
• Keeping careful accounts and reporting each year to the Public Guardian, who supervises all deputies.

There may be restrictions or conditions contained in the deputyship order which limit the deputy’s authority and the deputy must be mindful of these so as not to overstep their power. There are also some decisions which simply cannot be made by a deputy and, if a vulnerable person lacks capacity to make these, they must be referred to the Court of Protection for consideration.

These could include:

• Making a will
• Making a significant gift
• Issuing legal proceedings

If you require any advice or assistance in connection with making a deputyship application, the duties of a deputy or making another specific application to the Court of Protection, please contact our Court of Protection team at courtofprotection@ts-p.co.uk.