You can apply to become someone’s deputy if they ‘lack mental capacity’. This means they cannot make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times.
People may lack mental capacity because, for example:
· they’ve had a serious brain injury or illness
· they have dementia
· they have severe learning disabilities
As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.
There are 2 types of deputy:
Property and financial affairs deputy
You’ll do things like pay the person’s bills or organise their pension, buy property.
Personal welfare deputy
You’ll make decisions about medical treatment and how someone is looked after.
You cannot become someone’s personal welfare deputy if they’re under 16. Please contact us if you think the court needs to make a decision about their care.
The court will usually only appoint a personal welfare deputy if:
· there’s doubt whether decisions will be made in someone’s best interests, for example because the family disagree about care
· someone needs to be appointed to make decisions about a specific issue over time, for example where someone will live
Who can apply to be a deputy
You can apply to be a deputy if you’re 18 or over. Deputies are usually close relatives or friends of the person who needs help making decisions.
If you want to become a property and affairs deputy, you need to have the skills to make financial decisions for someone else.
The court can appoint 2 or more deputies for the same person.
When there’s more than one deputy
When you apply, tell the court how you’ll make decisions if you’re not the only deputy. It will be either:
· together (‘joint deputyship’), which means all the deputies have to agree on the decision
· separately or together (‘jointly and severally’), which means deputies can make decisions on their own or with other deputies
Other types of deputy
Some people are paid to act as deputies, for example accountants, solicitors or representatives of the local authority.
The Court of Protection can appoint a specialist deputy (called a panel deputy from a list of approved law firms and charities if no one else is available.
As a deputy, you’re responsible for helping someone make decisions or making decisions on their behalf.
You must consider someone’s level of mental capacity every time you make a decision for them – you cannot assume it’s the same at all times and for all kinds of things.
You’ll get a court order from the Court of Protection which says what you can and cannot do. There are also general rules and examples in the Mental Capacity Act 2005 Code of Practice.
Guidance for all deputies
When you’re making a decision, you must:
· make sure it’s in the other person’s best interests
· consider what they’ve done in the past
· apply a high standard of care – this might mean involving other people, for example getting advice from relatives and professionals like doctors
· do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language · add the decisions to your annual report
You must not:
· restrain the person, unless it’s to stop them coming to harm
· stop life-sustaining medical treatment
· take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf
· make a will for the person, or change their existing will · make gifts unless the court order says you can
· hold any money or property in your own name on the person’s behalf
Property and affairs deputies
You must make sure:
· your own property and money is separate from the other person’s
· you keep records of the finances you manage on their behalf in an annual report
You may need to manage a Court Funds Office account on the other person’s behalf.
You could be fined or sent to prison for up to 5 years (or both) if you mistreat or neglect the person on purpose.
Apply to be a deputy
You need to download and fill in lots of forms. You must name at least 3 people in your application who know the person you’re applying to be deputy for. For example, their relatives, a social worker or doctor.
The court may not accept your application if you do not send all of the necessary forms, especially the ‘assessment of capacity’ (COP3) form.
If you cannot get an assessment, you must download and fill in a witness statement to explain why you think the person you’re applying about lacks capacity.
You should keep a copy of every form you fill in before sending them off to the Court of Protection.
You must pay:
· a fee to apply to be a deputy
· a supervision fee every year after you’ve been appointed
You may also have to pay to set up a ‘security bond’ before you can be appointed as a property and affairs deputy.
When you apply
The application fee is £365 which must be sent with the application form. If you are apply for both property and finance and health and welfare you will have to pay twice.
If the Court decides the case needs a hearing you’ll also need to pay £485. .
You may have to pay to set up a ‘security bond’ before you can be appointed as a property and affairs deputy. This is a type of insurance that protects the finances of the person you’re a deputy for. This depends on the size of the value of the estate of the person you’re a deputy for . You can pay for it either:
· using the person’s money
· yourself – you can get the money back from the person’s estate once you have access to it
You may be prosecuted if you misuse the person’s money.
After you’ve been appointed You must pay an annual supervision fee depending on what level of supervisionyour deputyship needs. You’ll pay:
· £320 for general supervision
· £35 for minimal supervision – this applies to some property and affairs deputies managing less than £21,000
Your annual supervision fee is due on 31 March for the previous year.
You’ll also need to pay a £100 assessment fee if you’re a new deputy.
The Office of the Public Guardian will tell you how and when to pay your assessment and supervision fees.
You may be able to claim a refund of your fees in certain situations.
You may not have to pay an application fee depending on what type of deputy you’re applying to be and how much money you or the person you’re applying to be deputy for has
When you’re appointed
You’ll be sent a ‘court order’ telling you what you can and cannot do as a deputy. When you have this, you can start acting on the person’s behalf.
You’ll be sent the court order:
· as soon as you’re appointed – if you’re a personal welfare deputy
· after you set up a security bond – if you’re a property and affairs deputy and have been asked to do this by the court
You’ll need a separate court order before you can:
· sell a property that is jointly owned if you’re a property and affairs deputy
· make a one-off decision on anything else that’s not covered by the court order.
Supervision, support and visits
As a deputy, you’ll be supervised by the Office of the Public Guardian (OPG). They’re authorised to contact you or visit you to check you’re being an effective deputy. They can also give you advice and support.
How you’ll be supervised
New deputies get a ‘general’ level of supervision for their first year.
After that, if you’re a property and affairs deputy you’ll move to ‘minimal’ supervision if both:
· you’re managing less than £21,000
· you no longer need a general level of supervision You’ll pay a lower fee and have to write a shorter annual report than deputies with general supervision.
You may be visited by a Court of Protection visitor to check if you:
· understand your duties
· have the right level of support from OPG
· are carrying out your duties properly
· are being investigated because of a complaint
The visitor will call you to arrange the visit and explain why they’re visiting.
Ending your deputyship
If you no longer want or need to be a deputy, download and fill in the appropriate form and send it to the Court of Protection with any supporting evidence, for example a doctor’s letter.