We don’t know about you, but when we hear the word ‘deputy’, it’s quite hard to stop our minds from picturing the Wild West.
Unfortunately, in terms of English law, becoming someone’s deputy doesn’t involve cowboy hats, chaps or even spurs. (Though we’re pretty sure the law doesn’t actually prevent you from dressing up in such a fashion should you be so inclined).
Rather, deputyship is when someone is appointed to manage someone else’s affairs on their behalf.
When is a deputy needed?
It might not be much fun thinking about the possibility of losing one’s marbles… but it can happen to the best of us.
A deputy can be appointed to help in situations where an individual is no longer considered to have ‘mental capacity’. In actual English, this means that the person no longer has the ability to make important decisions for themselves. When this happens, a close family member or a suitably responsible friend can be called upon to step in.
This can happen when:
- Someone has permanently lost capacity, perhaps after a diagnosis of dementia or Alzheimer’s disease.
- Someone does not have capacity due to a severe learning disability.
- Someone has temporarily lost capacity due to a serious accident or mental health crisis.
Are there different types of deputies?
Being appointed as someone’s deputy isn’t necessarily as all-encompassing as it sounds: you might only be given authority to make a certain type of decision for them. You might be appointed permanently, or you might be appointed for a certain amount of time or to make one specific decision.
There are two types of deputyship, and someone can be appointed as one type or as both types.
The first type is a property and financial affairs deputy. This involves taking on the responsibility of managing the finances and property concerns of the individual. (So, administrating their pension, paying their bills, maintaining their property).
The second type is a personal welfare deputy. This involves making decisions relating to the kind of medical treatment someone receives, how they are cared for or where they live.
How do you become a deputy?
In the Wild West, deputies were appointed by the sheriff. In modern day England & Wales, they’re appointed by the Court of Protection. We’d like to draw some parallels between the two, but in truth we think we’re stretching the metaphor here.
If you need to step in on a loved one’s behalf, you can apply to the Court of Protection to be appointed as their deputy. You can do this as an individual or as a group of deputies, for example, grown-up siblings applying together to act for an aging parent.
Anyone over the age of eighteen can apply. Close family members or friends usually take on the role, but professionals can also be appointed if there are no family/friends at hand (or, presumably, if none of them are considered sensible enough).
As well as filling in rather a lot of forms and seeking evidence from experts, you’ll also have to pay an application fee. The fee is currently £365 per deputyship type, plus an additional £485 if the court decide a hearing is required.
It’s worth noting here that the Court of Protection don’t just approve deputy applications willy-nilly. Each application is considered carefully in light of the absolute best interests of the person who needs support.
If the Court of Protection does approve your application, they’ll issue you with a court order that sets out exactly which type of decisions you have been authorised to make on the individual’s behalf. If an issue arises that you’re not authorised to deal with, you’ll need go back to the court with another application.
What can and can’t you do as a deputy?
We’d like to think it goes without saying that a deputy shouldn’t use their appointed position for their own advantage. In that vein, deputies shouldn’t help themselves to bank accounts, pack aging relatives off to substandard care homes or veto life-saving treatment.
Instead, deputies should always consider the best interests of the person they’re supporting… along with the types of decisions that person has made in the past. For example, if an individual had said repeatedly that they definitely didn’t want a certain medical treatment, it would be inappropriate for a deputy to approve it on their behalf.
Deputies should always try and explain their decisions to the person they are supporting and get their input. Just because someone is unable to make some decisions for themselves, it doesn’t mean they’re unable to make any decisions.
We’ll also note here that deputies have a bit of extra homework: annual accounts. When you’ve been appointed as a deputy, you have a legal obligation to produce annual accounts that record all the decisions you’ve made and actions you’ve carried out. Oh, and there’s an annual supervision fee to pay. (Sorry!)
Can you get support?
It can be hard enough managing your own finances and welfare… taking on the additional task of making someone else’s big decisions for them may well tip you over the edge.
If you’re feeling rather overwhelmed with responsibility, it can help to call in reinforcements. (After all, the old wives weren’t wrong about the whole problem shared is a problem halved thing). This might be easier if you have been appointed as a joint deputy, but it can also be straight-forward to address as a single deputy by delegating some of your duties to a solicitor.
Is it possible to plan for this in advance?
Well, yes, we’re glad you asked. Though the Court of Protection can be very efficient in appointing deputies, there is a way to avoid the process altogether by engaging in a bit of forward-thinking.
If you’re concerned you might not be able to make decisions for yourself in the future – or if you’re the close family member of someone who might not – it’s well worth considering making a Lasting Power of Attorney (LPA). An LPA is a serious legal document that gives an individual the power to choose who they’d like to act on their behalf should they be unable to for any reason. Our blog post on LPAs is here https://landandlaw.co.uk/what-are-lasting-powers-of-attorney-and-why-should-you-have-one/
Someone who is appointed to this role in an LPA is called an attorney. Though this no doubt limits opportunity for Wild West jokes, it also significantly limits the stress and uncertainty of the deputy application process. Call us staid legal types if you must, but we think this is a pretty reasonable trade.
If you’d like to chat deputies, attorneys or debate the finer points of mental capacity, you know where to find us.
The Government Website has in depth information in respect of Deputyship Orders and you can find it here : https://www.gov.uk/become-deputy