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The Role of a Deputy

Solicitors in Essex & London

The Mental Capacity Act 2005 (‘the Act’) provides the legal framework for making decisions on behalf of individuals who lack mental capacity to make particular decisions for themselves. All Deputies are required to carry out their role in accordance with the principles laid down in the Act. All decisions must be made in the best interests of the person who lacks capacity having regard to the Act, its accompanying Code of Practice and the scope of authority conferred on the Deputy by the Court Order. Our solicitors in Essex and London are able to offer further advice relating to the role of a Deputy.

The duties of a Deputy will vary according to the specific needs of the person who lacks capacity. In all cases a Deputy must:

  • Maintain detailed financial records of all transactions carried out and records of all decisions made.
Other common duties of a Deputy include:
  • Identifying all financial assets and registering the deputyship order with those financial organisations – typically this will include bank accounts and investment products.
  • Obtaining professional advice when appropriate. This could include financial advice on the appropriate investment of funds or legal advice on any legal matter.
  • Identify all income. This could include claiming state benefits or maximising investment income by making better investments.
  • Selling a property – it is important to ensure that the Court Order gives the deputy the authority to do this. If it doesn’t, the Deputy will be required to make a further application to the Court to obtain specific authority.
  • Letting a property to create an income stream – this will include the need to observe all statutory duties that are imposed on landlords, particularly in relation to health and safety. Often a Deputy will appoint a managing agent to collect the rent and to ensure compliance with their relevant statutory obligations.
  • Preparing and filing Income Tax Returns with HMRC and ensuring that all taxes are paid.
  • Paying expenses and debts. It is common for debts to accrue over a period of time prior to the deputyship appointment as the person lacking capacity often has not been able to their financial affairs for several months prior to the deputyship appointment.
  • Contact care providers to ensure the continuation of care. It is important to note, however, that a Court Order in relation to Property and Financial Affairs doesn’t enable a deputy to make decisions affecting a person’s health or welfare (please see below).
  • Recovering money owed to the person who lacks capacity. In simple cases this could mean ensuring the repayment of an existing debt. In more complex cases a deputy may be required to make investigations to lead to the recovery of funds that have been misappropriated by a third party.

The Office of the Public Guardian currently supervises approximately 60,000 Deputies. The vast majority of these relate to Deputyship Orders concerning a person’s property and financial affairs. A minority of Deputyship Orders relate to decisions affecting a person’s health and welfare, however, such orders are relatively rare as a result of the Court’s approach to these types of decisions.

The Court’s general approach is that a Deputyship Order is not required to regulate day-to-day decisions affecting health and welfare, as those types of decisions are already regulated by the relevant provisions of the Mental Capacity Act 2005. Examples include actions and decisions in relation to health care, personal hygiene, dressing, eating and drinking, living arrangements, social contact and arranging household services.

The Court’s general approach is that, where necessary, it will make a specific decision rather than make a Deputyship Order that gives a deputy full authority to make all decisions affecting a person’s health and welfare.

Common case specific decisions include:
  • Deciding where a person lacking capacity should live.
  • Deciding if a person should or shouldn’t receive healthcare. This could include a decision about the continuation or withdrawal of life-sustaining treatment.
  • Deciding what contact (if any) a person should have with another person. For example, the Court may decide that it is not in the best interests for contact to continue as the person lacking capacity is at risk of abuse.

In rare cases, the Court will make a health and welfare Deputyship Order. This may be appropriate when:

  • A person suffers from a progressive illness or profound learning disabilities, and requires a series of medical decisions to be made on their behalf over a long period of time.
  • There is a risk of a serious dispute in the person’s family regarding what is in a person’s best interests.
  • There is a risk that a person may be at risk of serious harm if decisions are made by family members.

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If you’d like further legal advice relating to the role and responsibilities of a Deputy, please feel free to contact any of our expert solicitors directly. We offer free initial consultations in any of our five offices across Essex and London, are able to see clients at short notice, and also offer home visits to those who are unable to personally attend our offices.

Due to the recent Coronavirus (COVID-19) outbreak we are currently offering appointments by telephone and some video calling services. Our offices are also open with comprehensive safety measures in place.

Our Court of Protection accreditations include:

Legal 500 UK 2019
Solicitors For The Elderly

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