It can be overwhelming thinking about and preparing for a period of mental incapacitation due to illness, a disability or the natural ageing process. LPAs help address this by allowing you to appoint an attorney in advance, should the need arise. Without an LPA, the Court of Protection can provide for deputyship and appoint a deputy.
However, deputyship can be a hassle and costly. It can also be stressful for your loved ones, as the wait time for deputyship applications can range from four to six months. Therefore, making a property and finance LPA, a health LPA, or both for a comprehensive care plan for your future is advisable.
Regardless, it’s important to understand the duties of a deputy.
While the duties of an attorney and a deputy may overlap to some degree, they come into effect under different circumstances. In this article, we’ll explore the main duties of a deputy and offer some necessary insights into deputyship.
1. What Is Deputyship?
Deputyship allows an individual appointed by the Court of Protection (CoP) to manage the affairs of a person who has lost mental capacity. In the absence of an LPA, it’s a useful legal remedy. Anyone of legal age with mental capacity can apply to be a deputy. A solicitor, loved ones or family members can apply for deputyship jointly or separately.
If a person has made an LPA and appointed an attorney before a loss of mental capacity, the LPA will come into effect. The LPA will grant the attorney all such scope of powers as determined by the registered LPA document. Deputyship, on the other hand, can be applied for and comes into effect only after a person has lost the mental capacity to manage their affairs.
The benefit of having an LPA is that you can choose your attorney and set the ground rules for managing your personal and financial affairs. In deputyship, not only do you not have that choice, but the CoP determines it based on its own findings and the deputyship applications it has received. This may or may not be to your liking. Additionally, unlike an attorney, a deputy is subject to supervision by the Office of the Public Guardian (OPG).
2. Applying for Deputyship
Filing an application for deputyship is a lengthy process. It begins with filling out several forms – an application form, a mental capacity assessment form, a deputy declaration form and a supporting information form. An individual applying for deputyship must be of legal age and have mental capacity. A deputy must also name three people who know the person they’re applying to be deputy for. This can include family members and medical or social support staff members.
The CoP can appoint more than one deputy if necessary. Deputyship can also be applied for jointly or with several people. This would entail making decisions with other deputies or separately to make the best possible choices and decisions.
In the absence of family members or loved ones, the CoP will appoint someone from its database of law practitioners, charities and solicitors to fulfil the duties of a deputy.
3. Duties and Responsibilities of a Deputy
The Court of Protection guide clearly outlines the process of applying for deputyship. Deputies are required to act in your best interests and are, in that sense, similar to attorneys. They are generally close family members or loved ones. It’s a prerequisite for the person making a deputy application to know the person they’re applying to be the deputy of. This also involves knowing their immediate family, loved ones or support staff.
Deputies must maintain an annual deputy report to record all their duties and responsibilities. They must explain and justify their decisions and prove that they were in the best interests of the person they’re taking care of. Deputies must also comply with OPG standards to continue deputyship.
Personal welfare deputies are especially advised to liaise with medical support staff and social workers to give the highest standard of care and service possible.
Deputyship also involves ensuring that the person in their care understands the full scope of the decisions made for them. This could imply using sign language, through actions or any other medium of communication. The duties of a deputy will include all such responsibilities listed out by the CoP, which may also have limitations in decision-making authority.
4. Reporting and Compliance – CoP
The OPG supervises all duties of a deputy as part of its oversight powers. They will contact deputies from time to time to check if they’re complying with the standards laid out for deputies. Court of protection guides require new deputies to be supervised regularly for the first year of their deputyship duties. This allows them to monitor if a deputy is fulfilling their duties to the best of their abilities and is in accordance with their guidelines.
The OPG also offers support to deputies and helps them manage their duties and responsibilities. In addition to compliance with guidelines, deputies must make annual reports explaining their decisions to the OPG. Non-compliance can invite additional scrutiny and possibly disqualify them from deputyship.
5. Grounds for Disqualification
Deputies can be disqualified on several grounds. Deputies can’t exercise authority beyond the scope of powers outlined by the OPG. They can’t restrict the movement of the person under their care (unless authorised by the CoP) or refuse life-sustaining treatments. They also can’t continue exercising the duties of a deputy if they become mentally incapacitated or debilitated, preventing them from performing their deputyship duties.
Other grounds for disqualification include complaints made by other deputies, family members or loved ones to the CoP, which will bring grounds for investigation and possibly an end to deputyship. The bottom line is that any decision or action taken that is not in the best interests of the person they’re taking care of can be grounds for disqualification.
Choose Zenco to Create an LPA Online
Now that you know the duties of a deputy and what deputyship entails, it may be time to consider writing an LPA. An LPA can avoid the potential hassles involved in deputyship and make estate planning more manageable. Zenco Legal can help you write a property and finance LPA or a health LPA to better prepare for the future.
We also offer other legal services, including helping you write an LPA online, a will, or set up a trust. Our qualified legal professionals have years of experience supporting and guiding individuals through legal processes.
For more information on our services, check out our guides or book an appointment now.
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