A Deputyship establishes a similar relationship to that of a Donor and Attorney in a Lasting Power of Attorney. The key distinction lies in the fact that, when the donor lacks the capacity to choose their appointees, as required for creating Lasting Powers of Attorney (LPA), the court must be convinced that appointing a deputy is in the best interests of the individual. Read on to learn more.
So, What are Deputyship Orders?
A Deputyship Order is a legal arrangement that grants authority to an individual, known as a deputy, to make decisions and act on behalf of someone who lacks the mental capacity to make those decisions themselves. The Mental Capacity Act 2005 (MCA) governs deputyship in the UK, providing a framework for protecting and assisting individuals who lack capacity.
The Different Types of Deputyship Orders
Similarly to Powers of Attorney, there are two main types of Deputyship Orders:
1. Property and Financial Affairs Deputyship
This type of order authorises the deputy to manage the financial and property matters of the person lacking capacity. It includes handling their bank accounts, paying bills, managing investments, and making decisions related to property.
2. Health and Welfare Deputyship
This order empowers the deputy to make decisions concerning the healthcare, living arrangements, and general welfare of the person lacking capacity. This includes decisions about medical treatment, accommodation, and day-to-day care.
When is Deputyship Necessary?
Regarding property and finance, anyone who possesses financial assets like property, bank funds, or shares will require someone to act on their behalf. Thus, if decisions need to be made or funds need to be accessed, an individual must apply to become a deputy on their behalf.
As for health and welfare matters, appointing a deputy is often more challenging due to the prioritisation of safeguards within the law, such as those outlined in the Mental Capacity Act 2005, which place great importance on health-related issues. Nonetheless, there are specific scenarios where the court must be involved in decision-making.
These scenarios include cases where significant medical treatment is necessary, even if there is no dispute among the involved parties, as well as situations involving potentially risky medical and welfare questions.
Obtaining a Deputyship Order
To submit a Deputyship Order, you need to follow these steps:
- Complete the relevant application forms, which can be obtained from the Court of Protection
- Provide evidence of the person's lack of mental capacity, usually through medical assessments
- Notify all relevant individuals, such as close relatives, of your intention to apply
- Apply to the Court of Protection along with the required fees
- The court will review the application, assess the suitability of the proposed deputy, and make a decision
Who can be a Deputy?
The Court of Protection appoints deputies in the UK, and they can be either:
- Family members or close friends of the person lacking capacity
- Professionals, such as solicitors or accountants, who have the necessary expertise and experience
The court considers each application on a case-by-case basis and prioritises individuals who are likely to act in the best interests of the person lacking capacity.
A Deputy's Duties and Responsibilities
The duties and responsibilities include:
- Acting in the best interests of the person lacking capacity
- Making decisions and managing the person's affairs within the scope of the Deputyship Order
- Keeping accurate records of all financial transactions and decisions made
- Regularly reporting to the Office of the Public Guardian, providing details of financial management and any significant decisions
- Consulting with relevant parties, such as healthcare professionals and family members, when making decisions regarding the person's welfare
Do Deputies Have Restrictions?
Deputies operate within certain restrictions, which include:
- Acting within the scope of the Deputyship Order and not exceeding the authority granted.
- Making decisions that are in the best interests of the person lacking capacity.
- Seeking court approval for certain types of decisions, such as selling property or making large financial investments.
- Complying with any specific instructions or limitations set by the court.
The Surrounding Legislation
The legal legislation surrounding deputyship primarily consists of the Mental Capacity Act 2005 and the associated Mental Capacity Act Code of Practice. These laws provide a framework for protecting and supporting individuals who lack the capacity to make decisions for themselves.
Here are key aspects of the legislation:
- Mental Capacity Act 2005: This is the primary legislation governing decision-making and deputyship for individuals who lack capacity in England and Wales. It sets out the principles, procedures, and safeguards for decision-making on behalf of individuals who cannot make decisions themselves.
- Lasting Power of Attorney: The MCA introduced LPAs as a way for individuals to plan and appoint someone to make decisions on their behalf if they lose capacity in the future. LPAs replaced the older Enduring Powers of Attorney. The MCA establishes the legal requirements and processes for creating and registering LPAs.
- Deputyship: When someone lacks capacity and has not created an LPA, the Court of Protection can appoint a deputy to make decisions on their behalf. The MCA and associated rules provide the legal framework for applying for deputyship, the duties and responsibilities of deputies, and the oversight and supervision of deputies by the court.
- Best Interests: The MCA emphasises the principle of acting in the best interests of individuals who lack capacity. Deputies must make decisions that promote the individual's welfare and take into account their past and present wishes, beliefs, and values.
- Mental Capacity Act Code of Practice: The Code of Practice provides practical guidance and explanations of the MCA's provisions. It offers detailed information on assessing capacity, making decisions in someone's best interests, and the role and responsibilities of deputies.
- Safeguards: The MCA incorporates safeguards to protect the rights and well-being of individuals lacking capacity. These include requirements for independent mental capacity assessments, consultation with relevant individuals, and regular reporting and supervision of deputies by the Office of the Public Guardian.
If you would like more information on what is a Deputyship Order, contact our experienced solicitors today. Send us an email to info@witansolicitors.co.uk.
