If a relative or close friend lacks mental capacity, you may need to make decisions on their behalf. This is OK, providing they’ve made a Lasting Power of Attorney (LPA) and appointed you as their attorney. But if there’s no LPA in place, you may have to make an application to the Court of Protection to be appointed as their deputy.
The Court of Protection is a special court that deals with all issues relating to mental capacity and safeguards the rights of vulnerable people.
When someone cannot make a decision for themselves, the Court of Protection will appoint someone to be their deputy. The deputy will then make decisions on their behalf. The Court of Protection could decide to appoint a deputy for one specific decision, but more commonly a deputy is appointed to make all decisions, providing there is a general lack of capacity.
Similar to Lasting Powers of Attorney, there are two types of deputyships. They are:
- Property and financial affair deputy
- Personal welfare deputy
Being a Deputy
If you need to make a deputyship application, you’ll need to demonstrate to the Court of Protection that the person you’re applying to be deputy for does not have the mental capacity to manage their own affairs. You’ll also need to show that you are the most suitable person to make decisions for them.
You have to be over 18 to become a deputy and the Court of Protection will more probably choose someone who is a family member or close friend to be a deputy. The Court can also decide to appoint more than one deputy for the same person.
If there is more than one deputy, the court will decide how the deputies make decisions.
There are two options – the first is that you have to agree on any decisions and the second is separately and together, where they can either make decisions on their own or with the other deputies.
If the Court of Protection is satisfied that the person your applying for deputyship for has lost mental capacity and that you are the most suitable person to help manage their affairs, the Court of Protection will issue an order appointing you as the deputy and outlining what you can and can’t do.
Responsibilities of A Deputy
Being a deputy is a significant responsibility. Guidance and examples are given by the Mental Capacity Act 2005 and its Code of Practice. As a deputy, you should always consider if the person you are making the decision for has the capacity to make that decision themselves. You should never assume there is always a lack of capacity for every decision.
When making a decision as a deputy, you must:
- Ensure it’s in the person’s best interest
- Think about decisions they’ve made in the past and how that could influence your decision
- Apply high standards of care and get advice from medical professionals, friends and family if you need to
- Help the person to understand the decision. You can use aids such as pictures or sign language if this will help.
- Keep records of your decisions
- Submit annual reports to the Office of Public Guardian (OPG)
Your annual report needs to outline the decisions you’ve made, the reasons for these decisions and why they were in the best interests of the person you’re deputy for. You should also include details of anyone you spoke to about the decision and what they said and also include financial details if you are their property and financial affairs deputy.
Emergency deputyships applications can be made for certain, urgent matters.
For example, if someone is selling a property and suddenly does not have the capacity to understand and sign the contract of sale, an application can be made for the appointment of a deputy to sign on their behalf. We offer a free 30 minute consultation to discuss your situation.
If you need to make a deputyship application on behalf of someone or would like advice relating to your role as a deputy, please call 0117 926 4121 or make a Free Online Enquiry.