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What is a deputy?
A deputy is a person appointed by the Court of Protection to manage the affairs of someone who lacks the mental capacity to manage their own affairs. They are usually a friend or relative of the person who lacks capacity, but in some circumstances it could be a professional such as a solicitor or accountant, or it could be another professional appointed by the court. To become a deputy you must be at least 18 years of age and agree to your appointment. It is possible for a person to have two or more deputies, and it may be advisable to consider this.
What does a Deputy have to do?
When acting as a deputy and making decisions on behalf of another person, you have a duty to:
- act in the person’s best interests
- act with due care and skill (known as ‘duty of care’)
- not take advantage of the situation of the person who has poor capacity (known as a ‘fiduciary duty’)
- not delegate your duties unless authorised to do so in the deputyship order
- act in good faith
- respect the person’s confidentiality
- comply with the directions of the Court of Protection.
If you are a deputy for property and affairs, you also have a duty to:
- keep accounts
- keep the person’s money and property separate from your own, for example by using separate bank accounts.
What can a Deputy not do?
A deputy’s powers should be as limited as reasonably possible, both in terms of what they can do and how long they last. This means that the deputy should only have the powers that they really need to have and no more. There are also some specific restrictions on a deputy’s powers. A deputy cannot:
- make a decision for the person if they
can make the decision themselves
- restrain the person who has poor capacity, except in very particular
circumstances to prevent harm to the person
- go against a decision made under an existing power of attorney
- refuse life-sustaining treatment for a person who lacks capacity to consent to this.
Every deputyship order is different, and it may contain further limits to the deputy’s powers. For example, the court may place a limit on how much can be spent in a single transaction, or a cap on how much can be spent in a certain period of time.
The court can cancel a deputy’s appointment at any time if it decides the appointment is no longer in the best interests of the person who lacks capacity.
As a deputy you should consider the person’s level of mental capacity every time a decision needs to be made, as it can change. A person may be able to make a certain decision at one time but not another, or at a certain time be able to make some decisions but not others. You should not assume that it is the same for all decisions and at all times, and you should do what you can to support the person to make the decision for themselves.
Deputy annual report
As a deputy you will have to provide an deputyship reports to the court, annually or whenever they are requested. This gives the court information about the decisions that you have made on behalf of the person who has poor capacity. It should also provide summary accounts for the court to approve, if you are a property and affairs deputy.
You must provide information about financial transactions in the previous year, including any gifts the person has made, their care arrangements and any property that they have bought or sold. You may be asked to provide evidence, such as bank statements.