A property and affairs deputy is appointed by the Court of Protection to make financial decisions on behalf of a person who lacks mental capacity.
The deputy has a similar role to a trustee. They must keep the deputyship funds entirely separate from their own personal funds. They must keep proper records and accounts. The deputy’s powers are set out in the deputyship order and the deputy must ensure that they comply with the terms of that order.
A deputy must also ensure:
- That the person’s assets are kept safe and insured as appropriate,
- That their money is invested so as to get the best possible return,
- That the person is claiming all benefits and income due to them.
- The deputy must work out budgets for expenditure to ensure that the money lasts for as long as it is needed.
Many of our clients live independently but are also very vulnerable. The deputy must protect the person’s assets from exploitation and must be alert to safeguarding concerns.
In cases where the person lives with other family members, the deputy acts as an independent third party to ensure that the other family members make a reasonable contribution towards household bills, holidays and other expenses. The deputy can also decide how much the person should pay family members for the care that they provide.
When deciding whether expenditure should be incurred, the most important guiding principle for any deputy is that all decisions must be in the incapacitated person’s best interests.
In order to consider the person’s best interests, the deputy must consider:
- the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
- the beliefs and values that would be likely to influence his decision if he had capacity, and
- which option would be the least restrictive of the person’s freedom and autonomy.
The work of the deputy is supervised by the Office of the Public Guardian (OPG). The OPG will raise concerns if they think that spending decisions are not in the person’s best interests or that the deputy is failing in their duties.
The OPG will require the deputy to take out a security bond. This is an insurance policy which covers any losses caused by the deputy. The OPG will also require the deputy to file an annual report and detailed accounts.
A property and affairs deputy has many onerous obligations and duties. This is not a task to take on lightly. Often there is no family member who is able to take on the role of deputy and the only option is to appoint a professional deputy. At Hodge Jones & Allen we have been appointed as professional deputy for 55 clients. We have a specialist team who deal with all aspects of property and affairs deputyships. Our clients lack capacity for a number of reasons including brain injury, dementia, mental illness and learning disability.