A Deputy is a person appointed by the Court of Protection to make decisions for someone who lacks mental capacity to make appropriate decisions about his or her own Health, Welfare, Property and Finance.
Like the Power of Attorney, you (or you and others) apply to be appointed by the Court to look after someone’s financial interests and health and welfare. The person for whom you are appointed as an Attorney decides to choose you.
If the person in question cannot give instructions, then you will need to take advice from the person’s psychiatrist who makes a diagnosis that confirms the mental incapacity according medical, psychiatric and legal criterion.
There is a cost attached to becoming a deputy (more later); however, it is a democratic process that recognises that not all of us are wealthy. If the person for whom you are applying to represent has a low income (small pensions) then there you can ask for an exemption to the fees required.
You do not need to employ a solicitor to apply to the Court of Protection.
We did. Firstly, because we believed that it could only be done that way; secondly, because I was so exhausted working and caring for our mother that I did not have the stamina to do it myself – had I known.
It is form filling on your own behalf and appropriate family members. Some people are blessed with skills in form filling, others not. If not, then it may be sensible to seek out legal assistance to take you through the process.
However, there is usually on person in each family who has the tenacity it requires in filling forms and approaching others to complete their part.
Like Power of Attorney, there two types of deputy you can apply for:
The court appointed deputy will make appropriate decisions about health, medical interventions, care home arrangements and end-of-life arrangements and decisions.
The court appointed deputy will be able to make all financial decisions with regard to looking after her pension, care home costs and buying items to make the person’s daily life as nice as possible.
In the United Kingdom it is important to know that the Mental Capacity Act (MCA) is quite specific (in a helpfully vague way) in that when it comes to care and end-of-life pronouncements that the decision of a ‘Deputy’ is required.
The MCA does not make a specific reference to which type of deputy should make the decisions. It merely says ‘Deputy’.
We had only applied for Deputy for Property & Financial Affairs and yet throughout the entire period of our mother’s care, my brother and I were consulted on absolutely every major care decision on behalf of our mother.
The Court of Protection can guide you on this simple and very important point of law. They will even give you the sections of the MCA that you can wave at people if you feel circumstances demand.
Once appointed you have the right to be informed of all decisions regarding your loved one’s care (within reason of course, for example, medical emergencies).
Very important to remember: If you are not happy, then you can say NO! and ask for a meeting to discuss the matter further.
In our mother’s final weeks, she had been taken to hospital on a number of occasions because her blood oxygen level had fallen so low. The cottage hospital is obliged by a statutory Duty of Care to call an ambulance and a paramedic is then obliged in such circumstances to take the sick person into hospital – usually Accident and Emergency.
Hospital is a terrifying place for a person in the later stages of dementia. In the end, I was able to put a stop to this by issuing a written instruction citing the specific portion of the MCA (phone the Court of Protection) that I did not wish for my mother to end her days in a state of fear, but in a calm environment with her family and nurses in attendance.
Simply put, you must be over 18 years of age, of sound mind, good character and generally a relative or best friend.
In rare circumstances, if a deputy becomes incapacitated or there is indecision or argument between deputies about a person’s care, then a legal or medical person can be appointed by the Court of Protection to make appropriate decisions.
However, it is worth remembering that not many solicitors award their services free.
Thankfully, as most people appointed deputies by the Court of Protection are caring and responsible it is very infrequent that that occurs. The application process allows family members not choosing to be deputies to have their say whether the person putting him or herself forward is the right person for the job.
Most people are glad that someone else is taking the job and they do not to have to undertake the responsibility themselves. It can be an onerous task.
When a person is approaching the end of their life you may be obliged by their condition to make the ultimate decision not to stop medical intervention and allow the person to die peacefully and not be injected or receive electric shocks.
You will know when that time comes, and the reassurance of experienced medical staff will support you. It will be an act of love to let someone go free of their pain.
At various stages of completing the various forms, you will be required by law to let the person know what you are doing and to ask their permission to act on their behalf.
Of course, a person who has suffered a major head injury, have a learning disability or suffer from dementia cannot respond.
What I did was to ask the dementia adviser in the hospital to witness me asking our mother whether she was happy about me looking after ‘money and stuff’. Mam did understand to a degree because I had looked after everything for her since our father died. ‘Shall I take care of everything for you’. Mam smiled, and I looked to the adviser I’d asked to witness our chat, who nodded.
Of course, if you the person demonstrates no understanding of what you are saying in general, the psychiatrist will, by then, have made a diagnosis that places the person in a different legal position. You will then be spared having to undertake your enquiry.
Once you have been appointed you become legally accountable for your actions, particularly for the disposal of the assets of the person you are acting for. For more information on your duties and limitations please Click Here.
I refer you to the same link for information about upfront Fees and Supervision Costs. There are exemptions if the income of the person subject to the process is below £12,000 (2017) and/or the income of those nominated is low.
You will be supervised in your role as deputy and will have to show annual accounts for expenditure. It is the Office of the Public Guardian (OPG) that will do this.
If you are uncertain at any stage the I would strongly recommend you contact the OPG for appropriate advice. The contact details are:
Office of the Public Guardian
Telephone: 0300 456 0300
Monday, Tuesday, Thursday, Friday, 9am to 5pm
Wednesday, 10am to 5pm
Office of the Public Guardian
PO Box 16185
Rarely does it happen, but in some families, there may conflict over the disposal of the person’s money and investments. There is a distinct lack of trust.
When people are nominated to the Court of Protection as potential deputies, each immediate member of the family must be notified of the nomination. At that stage an individual can either sign and return a form stating that they have no objection, OR they can lodge an objection to one or more of the nominated persons.
Also, if more information is required or some questions longer, you will have to make representations to the Court of Protection. This may well involve an appearance before the court. You will have to pay for this. Therefore, get it right first time and resolve any conflict within the family or friends before you lodge your application.
If you have any questions, please have a look at this link to the Court of Protection.
Court of Protection
Telephone: 0300 456 4600
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
Make sure that all organisations, banks and utility companies, for example, are informed in the change of legal status of the subject of the deputy appointments.
Up until this point you have not been able to act to vary actions being carried out in the name of the account holder, such as standing orders and direct debits. If the person was making nominal monthly donations to charities, then those can carry on.
Again, for more on this please Click Here for the Office of the Public Guardian and scroll down.
The information provided above is an interpretation of the process of applying and being a deputy gained through experience. It will be your own journey, so please make the time to check out the source material on the links provided.