Deputyship is where a person (called a Deputy) is appointed to manage the personal welfare or the property and affairs of another person, who lacks the mental capacity to manage this for themselves.
A Deputy can only act under a court order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity.
There are two types of order for a Deputyship:
- Property and financial affairs – gives you the authority to manage someone’s finances and property on their behalf.
- Personal Welfare – gives you the authority to make decisions for them about health and care. An application can be made for either one type of deputy or both.
Anybody can be considered by the Court of Protection to be appointed as Deputy. They may be a relative, friend, neighbour or professional representative, such as a solicitor.
What are the Powers and Duties of a Deputy?
A Deputy cannot exceed those powers set out in the deputyship order which may give wide powers to the Deputy, or set limits to those powers, for example large sums of expenditure or investment cannot be made without further permission of the court.
The Deputy’s duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help him, without success
- A person cannot be treated as lacking capacity merely because he wishes to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom
In addition to following these general principles, the Court of Protection places numerous additional obligations on the Deputy, as a safeguard for the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.
Who pays Deputyship Fees?
If you are making a claim for personal injury and will be awarded compensation, then the costs incurred will be included in the claim and paid for by the Defendant.