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What is a deputy?

Contents

What is a deputy?

Deputies are appointed by the Court of Protection (COP) to manage the property and affairs and/or personal welfare of someone who lacks capacity to make certain decisions for themselves.

For more information, see the What is the Court of Protection? section.

Why might you need a deputy?

If a person has not appointed an attorney in a power of attorney (POA), or if they do not have the mental capacity to make a POA, there might be the need for the COP to appoint a deputy.

How do I become a deputy?

If the person you care for needs certain decisions made on their behalf, but has not appointed or is unable to appoint an attorney, then you will need to apply to the COP. For more information, see the What is the Court of Protection? section.

What is a deputy order?

A deputy order is the document given to you by the COP, which sets out your powers as a deputy.

If you have been appointed as a deputy for property and financial affairs, your powers may include receiving income, such as benefit payments, retirement pension, occupational pension, or interest and dividends earned on investments. The order may also authorise you to receive capital, such as money from banks, building societies or other financial institutions held on behalf of the person lacking capacity, and to spend this money appropriately on their behalf.

If you have been appointed as a deputy for health and welfare, the order may authorise you to make decisions about the care or medical treatment that the person receives.

Office of the Public Guardian

The Public Guardian (supported by the Office of the Public Guardian (OPG)) is responsible for supervising court-appointed deputies.

For more information, see the What is the Public Guardian? section.

Mental Capacity Act

The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower people to make decisions for themselves as far as is possible and to protect vulnerable people who may not be able to make all their own decisions.

The MCA covers major decisions about health and welfare and property and financial affairs, as well as everyday decisions about health, care and daily spending.

When making decisions, deputies must have regard to the Code of Practice (the 'Code'), which supports the MCA and provides guidance for people - such as family members, professionals and carers - who work with and/or care for adults who lack capacity.

The Code also describes the responsibilities of deputies when acting or making decisions with or on behalf of individuals who lack capacity.

For more information, see the What is mental capacity? section.

Supervision of Court-appointed deputies

It is the Public Guardian's responsibility to supervise deputies. This means checking that they comply with the terms of the COP's order, that decisions made are in accordance with the Code and that a deputy is acting in the best interests of the person lacking capacity.

If the Public Guardian considers that a deputy has not fulfilled their duties, the COP may look into this, and may discharge the deputy and appoint a new deputy in their place.

The OPG will apply varying levels of supervision for deputies. The level of supervision depends on various factors, including:

  • The complexity and value of the estate of the person who lacks capacity
  • The relationship and amount of contact between the deputy and the person who lacks capacity
  • The type of decisions the deputy is being asked to make
  • The deputy's experience or past record as a deputy
  • Support provided to the person who lacks capacity by family, friends and/or professionals
Deputies are notified in writing of the assessment decision, which includes a summary of the reasons. This is done as soon as possible after they receive the COP order appointing them.

If a deputy does not agree with the level of supervision they have been allocated, they can ask the OPG to review the decision.

They have 14 days to ask for full written reasons and a further 14 days to ask for a review.

If they are still unhappy with the outcome, they can ask for an independent review of the decision. If they do so, the Public Guardian will ask the independent adjudicator to consider the case and make a recommendation. The Public Guardian will then make the final decision.

The OPG may also change the level of supervision, which may result in a higher fee.

How does supervision work in practice?

Supervision may involve any or all of the following:

  • Requiring a deputy to provide an annual report to the Public Guardian
  • A COP visitor coming to visit the deputy and/or the person lacking capacity to ensure that the deputyship is working for both of them and that the deputy is making decisions in the best interests of the person lacking capacity
  • Regular contact with the deputy and others with an interest in the welfare of the person who lacks capacity
The OPG may ask a deputy to provide specific information to satisfy the Public Guardian that they are carrying out their duty as a deputy and properly managing the person's affairs. For example, they may be requested to provide more information about a decision they have made or to provide supporting documents about a financial transaction.

The OPG may also contact social services or health authorities to request copies of the health and social care records of the person lacking capacity or request copies of care records from registered care homes.

Reporting

The deputy order will specify whether the deputy must complete a report for the Public Guardian, and how often this is required. This report helps the Public Guardian to supervise the deputyship.

The report should record all the decisions made on behalf of the person who lacks capacity including financial decisions, if applicable.

A report from a property and financial affairs deputy would include a record of money received and payments made during the year on behalf of the person who lacks capacity.

Deputies should keep all documents supporting their role as deputy, for example, e.g. receipts for money spent, bank statements, invoices and all correspondence.

If a deputy fails to submit a report, the Public Guardian may decide to investigate the decisions that they have made as deputy. This may include asking for more information or asking a COP visitor to visit the deputy and/or the person whose affairs they manage.

If necessary, the Public Guardian may ask the COP to discharge the deputy and appoint a new deputy (e.g. a solicitor, accountant or local authority) in their place. The COP may also issue a summons requiring the deputy to appear before it and explain why they have failed to provide a report.

Fees

Fees are charged for OPG supervision. These fees are statutory, meaning they are set by Parliament. They are based on the cost of providing services to support both the person lacking capacity and the deputy.

Supervision fees are normally paid or reimbursed from the funds of the person lacking capacity. If the person lacking capacity cannot afford to pay, they may be eligible for fee exemption or remission. For more information, see the booklet LPA120: EPA and LPA Fees (opens a PDF).

Further information

Further information can be found in the leaflet OPG510: A guide for Deputies appointed by the Court of Protection (opens a PDF).

Alternatively, visit the Office of the Public Guardian or the Court of Protection.