When someone loses the capacity to make some or all of the necessary financial decisions which are needed for the day to day running of their lives and they have no valid power of attorney, it is possible to apply to the Court of Protection for the appointment of a Deputy to make those decisions. This is known as Deputyship. Click here to read more about Deputyship.
Need help understanding the role of a Deputy and the Court of Protection? Here are the answers to the most frequently asked questions.
What is the Court of Protection?
A specialist court that is responsible for overseeing financial and health and welfare issues for someone who has difficulty in making decisions due to an impairment in their mental capacity.
What is a Property and Affairs Deputy and a Health and Welfare Deputy?
This is a person appointed by the Court of Protection to take decisions that a person is unable to make for themselves. A Property and Affairs Deputy makes decisions about finances and a Health and Welfare Deputy makes decisions about those issues which might include decisions about where someone should live or the medical treatment they should have..
The appointment of a Health and Welfare Deputy is unusual. Health and welfare issues are usually dealt with by way of a single declaration from the Court after all other efforts to find a solution have failed.
A Property and Affairs Deputy cannot make decisions about health and welfare issues. Click here to learn more about Property and Affairs Deputies.
What causes 'lack of capacity'?
Lack of capacity will usually come from an impairment of or disturbance in the functioning of the mind or brain. There can be many causes of this, some of them temporary and others permanent. They might include brain injury as a result of an accident or clinical negligence, dementia, a stroke, mental illness or a learning disability.
Who decides whether a Deputy is needed?
The Court of Protection makes this decision based on an assessment of capacity report and the application papers. The evidence in relation to capacity is usually provided by a Doctor but can be given by other professionals such as treating therapists and Case Managers. Click here to see the capacity assessment form COP3 and other forms that the court may need to see.
What powers and responsibilities does a Property and Affairs Deputy have?
These will be set out in the Court of Protection order and can be wide and varied as they will depend upon the person's needs. They might include power to buy, sell or adapt property, make investments, employ support workers, invest funds and much more The Deputy will also be responsible for ensuring that any decision they make on behalf of the person they represent is one that is in that persons best interests.
Is Deputyship something to be avoided?
The court will only appoint a Deputy if it considers it to be necessary. The Deputy must work with the person they represent to maximise their capacity and only make decisions they are unable to make for themselves. In some cases, a Deputy will make lots of decisions. In others a person may be capable of making some decisions for themselves or they may have fluctuating capacity, especially if they have an underlying mental health issue. This means that the Deputy may have to make decisions about some issues on some occasions and not on others.
The Deputy will only make decisions which the person they represent cannot make.
What is the Mental Capacity Act and the Mental Capacity Act Code of Practice?
The Mental Capacity Act (MCA) is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It is a law that applies to individuals aged 16 and over or those under 16 who will not recover their capacity on attaining the age of 18. The MCA Code of Practice provides guidance to people who work within the Act. It says what they must do when acting or making decisions on behalf of someone who cannot act or make decisions for themselves.
Are the Mental Capacity Act and the Code of Practice used by the Deputy?
Yes; the Act and the Code are very important and the Deputy must take account of them at all times.
Click here to read more about the Acts guiding principles.
What sort of things can a Property and Affairs Deputy do?
It will depend upon the Court order and the level of understanding that the person they work with has at any time. In the case of a professional Deputy, the powers given by the Court are usually fairly wide allowing the Deputy to deal with many issues if help is needed.
This might include:-
- Renting, buying, adapting and selling property
- Ensuring that any property is adequately insured, maintained and repaired
- Employing staff either directly or through an agency.
- Ensuring that tax affairs are kept up-to-date and that tax is paid on time.
- Claiming appropriate state benefits and other statutory funding.
- Selecting a suitably qualified and experienced financial advisor or wealth manager to look after invested funds - this will involve an understanding of what is involved in the investment process and then choosing the advisor that best suits the incapacitated persons needs and is likely to achieve the best returns.
- Subsequently taking regular advice on the investment of funds and acting on that advice.
- Devising and following a budget which takes account of your needs and the value of funds available.
- Paying bills and monitoring cash flow.
- Arranging all insurance to an adequate level and dealing with any claims.
- Appointing a Case Manager and recruiting a care team if appropriate.
- Dealing with employment issues arising out of direct employment.
- Liaising with others including professionals, family and friends.
Who monitors the Deputy?
The Deputy is monitored by the Public Guardian to whom they are accountable for all their actions and decisions.
The Deputy has to complete a report to the Public Guardian every year. The report contains details of all the funds the Deputy has received and how they have been spent. Click here to see a copy of the annual report.
The Deputy must also demonstrate how they have worked with others and how they have made best interest decisions. The Deputy may also be required to meet with the Public Guardians official representative.
Professional Deputies must work to published standards click here to view the standards that Hyphen Law Deputies must achieve.
Does the Deputy need to prove to the Court that they are the right person for the role?
Yes; the Deputy has to provide the Court with a Declaration prior to being appointed. To download a copy of that declaration click here.
Is the Deputy paid for what they do?
A professional Deputy is entitled to be paid for the work they do based on the time they spend. The costs are independently reviewed on an annual basis by a specialist costs Judge. If someone has an acquired injury due to negligence or accident, the cost of the Deputyship will usually have been included within their damages award but the annual costs are still monitored by the Court.
It is unusual for a family or friend acting as Deputy to be paid anything other than out of pocket expenses e.g., the cost of telephone calls, travel expenses and postage. They will need to exercise care in their claim for expenses, they cannot, for example, claim their travel expenses if they are visiting in their capacity as a family member or friend. If, however, the journey is necessary in order to deal solely with Deputyship matters, they are entitled to reimbursement.
What happens if a family Deputy needs help and support from a lawyer?
They are entitled to seek advice with the cost being met from the funds of the person they represent.
This might include advice and support in relation to:-
- A new application for Deputyship or renewal or variation of an existing Court order.
- Assistance with completing an annual Deputy Report and/or annual tax return.
- Applying to the Court for approval of a Will.
- General advice and support at a particular time.
Why is it sometimes better to have a Professional Deputy?
A family member may not wish to be burdened by the responsibilities of Deputyship. Financial matters can be complex, particularly when they involve a large award of compensation; the family Deputy could, for example, find themselves responsible for the purchase and adaptation of property and employment of staff. The need to dispose of substantial assets or deal with fluctuating levels of capacity may also prove to be complex.
A Deputy may sometimes need to make a best interests decision which causes conflict between them and the person they represent. This can lead to tensions that impact on family life and relationships with others.
In many cases, it can be better for an independent third party to make decisions leaving the family to build or continue to have strong supportive relationships with each other.
A family member or friend may have acted as Deputy for many years but no longer feel able to do so due to health or other personal reasons.
The appointment of a professional Deputy can ensure continuity of support in the years ahead.
What can Hyphen Law do for clients?
Hyphen Law specialises in supplying high quality Property and Affairs Deputyship services to clients who lack the capacity to deal with some aspects of their finances. Our service is tailored to our clients individual needs.
We can provide a full Deputyship service with the provision of a professional Deputy or support a family, friend or other professional acting in that role.
If you are considering professional Deputyship we recognise that appointing someone you don't know can be a difficult decision. The Hyphen Law Deputyship team acknowledge this and work hard to build and maintain a personal but professional relationship with clients and their families throughout their lifetime.
For those clients with family Deputies, we can provide as much or as little help as is needed. This might include single or reoccurring support such as the completion of an annual Deputy Report or tax return. Some Deputies prefer us to maintain an open file so that we are on hand for advice as and when its needed.
As every client is different, we believe in tailoring our service to our clients needs, not making our clients fit the box.
What does a Property and Affairs Deputy need to know about care?
If the Deputy is directly employing support or care workers they will need to have an understanding of their obligations and responsibilities towards their employees. They will also need to understand the various types of statutory funding and benefits that they can claim whether it is from the NHS, the local authority or the Department of Work and Pensions.
What does Hyphen Law charge for its services?
If we provide a bespoke support service to the client and their Deputy, we will, whenever possible, offer a fixed fee for a particular piece of work. If we are retained to advise generally, we will work to a specific budget. This budget will be agreed with the Deputy and updated in advance of any work commencing.
If we provide a full Deputyship Service, we will charge for the time that we spend on an hourly basis and this time is then subject to the strict assessment process operated by the Court of Protection.
If the Deputy is at Hyphen Law, who does the work?
Although the Deputy is the person responsible for managing their clients financial affairs, they dont do all the work; Hyphen Law is made up of highly skilled professionals, all of whom specialise in different aspects of Deputyship work and at varying charge rates. This means that you will receive the right specialist at the right price.
Click here to meet the team.
Does that mean the Deputy is just a figure head?
No; the Deputy remains very much involved and is the decision maker.
Does it mean that I will speak to a different person each time I call?
No; all of our clients are served by a dedicated team of legal and support staff who have been specifically allocated to meet their needs. Click here to meet the team.
What are your service standards?
We aim to answer telephone calls as they are received. If the person you wish to speak to is unavailable, they will return your call as soon as possible on the same day or they will arrange for a colleague to do so.
Emails and letters will also be responded to in a timely manner. We dont believe in giving a general time for this as each email or letter requires a different level of consideration. We would rather reply properly than meet an impossible service standard by simply sending an acknowledgment. We will, however, respond to urgent enquiries as soon as possible within the same working day.
What geographical areas does Hyphen Law cover?
Our services are delivered nationwide and we have offices in Swindon, Bath, Bristol, Salisbury, Isle of Wight, Plymouth and London. We are happy to visit clients at home or in any other environment where they feel comfortable and at ease. We are innovative in our communication methods and are also happy to use telephone conferencing and Skype where it is appropriate.