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9. Court Appointed Deputies

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1. Introduction

A deputy is authorised by the CoP to make decisions on behalf of a person who lacks mental capacity. This means they cannot make a decision for themselves at the time it needs to be made. They may still, however, be able to make decisions for themselves at certain times. The difference between a deputy and a LPA is that the LPA is made before the donor loses capacity; the deputy is appointed after a person loses capacity and usually only if they have not appointed a LPA.

People may lack mental capacity because, for example:

  • they have had a serious brain injury or illness;
  • they have dementia;
  • they have severe learning disabilities.

2. Types of deputies

There are two types of deputy:

  • property and financial affairs, for example paying bills, organising a pension;
  • personal welfare, for example making decisions about medical treatment and how someone is looked after.

A person can apply to be just one type of deputy, or both. If appointed, they will get a court order saying what they can and cannot do. They cannot delegate their duties to others. Also they cannot:

  • prohibit someone from having contact with the person;
  • change the individual responsible for the persons healthcare;
  • override an existing LPA;
  • refuse consent to life sustaining treatment.

2.1 Applying to be a deputy

A deputy must be aged 18 or over. They are usually a close relative or friend of the person who needs help making decisions.

A property and affairs deputy needs to have the skills to make financial decisions for someone else.

The CoP can appoint two or more deputies for the same person.

Where there is more than one deputy the CoP will state how decisions must be made, either:

  • together (‘jointly’) – all deputies have to agree on the decision;
  • separately or together (‘jointly and severally’) – deputies can make decisions on their own or with other deputies.

2.2 Other types of deputies

Some people are paid to act as deputies, for example accountants, solicitors or representatives of the local authority.

The CoP can appoint a specialist deputy (called a ‘panel deputy’) from a list of approved law firms and charities if no one else is available.

3. After appointment

The deputy will be sent a ‘court order’ detailing what they can / cannot do.

They can start acting on behalf of the person:

  • as soon as appointed if they are a personal welfare deputy;
  • when they pay a ‘security bond’ – a type of insurance to protect the person’s money – if they are a property and affairs deputy;

A deputy receives supervision and support, and has to submit reports and accounts.

They may be prosecuted if they misuse the person’s money.

3.1 Supervision

Deputies are supervised by the Supervisory Division of the CoP. There are different levels of supervision.

  • Type 1: highest supervision;
  • Type 2: lower supervision;
  • Type 3: minimal supervision.

The supervision regime depends upon the:

  • complexity and value of the person’s estate;
  • relationship between the deputy and the client;
  • client’s support network;
  • terms of the Court Order.

Level of support:

  • Type 1: one visit by CoP Visitor, regular reports, contact by Office of the Public Guardian (OPG), with interested third parties;
  • Type 2: personally report to the OPG annually
  • Type 3: no regular intervention (cases where assets are below £16,000).

Welfare and Investment specialists will recommend the type of supervision and what that should entail.

3.2 Fees

  • Initial deputy set up – £125;
  • Type 1 annual supervision – £800;
  • Type 2 annual supervision – £175;
  • Type 3 annual supervision – £nil.

Fees can change from time to time, so practitioners should check the latest fees guidance at Deputies: make decisions for someone who lacks capacity.

In addition the deputy can claim reasonable expenses from the person’s estate and be paid if the Court so directs.

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