What is a Deputyship?

A Deputyship is an order made under the Mental Capacity Act 2005 when an individual is deemed to lack mental capacity and does not already have a Lasting Power of Attorney in place, or a Lasting Power of Attorney needs to be revoked or comes to an end. A person may lack capacity for several reasons, including:

• Dementia
• Brain injury
• Mental illness
• Learning disability.

There are two types of Deputyships: lay and professional. A lay deputy is usually a family member or friend, whereas a professional deputy would typically be a solicitor. All deputies are supervised by the Office of the Public Guardian (OPG) and have certain duties and obligations to fulfil under the OPG Deputy Standards.

The OPG expects professional deputies to have a higher level of technical knowledge and expertise than lay deputies.

Where there is no one suitable or willing to act for an individual, the OPG may consider an application to Court for the appointment of a Panel Deputy. A Panel Deputy will be appointed from a list of Court approved professionals appointed by the OPG. There are 71 panel deputies in England Wales, including this firms, Matthew Edwards. 

What are the two types of Deputyship?

The first and most common type of Deputyship is for decisions relating to property and financial. The Deputy’s authority can include the management of:

• Paying domestic bills
• Ensuring receipt of all eligible income e.g. Benefits and pension
• Managing bank accounts, including reconciling monthly statements
• Dealing with any capital assets and investments
• Managing property
• Trying to recover funds caused by financial abuse of P’s finances.

The second type of Deputyship relates to health and welfare decisions. These orders can be general in nature or decision specific.

What is the extent of a deputy’s authority?

The extent of a Deputy’s authority is defined in the Deputyship Order. When making decisions, Deputies must have regard to the five principles under the Mental Capacity Act 2005. Thes provide that

1. A person is assumed to have capacity unless it is proven otherwise.
2. A person is not to be treated as unable to make a decision unless all practicable steps have been taken to help P to do so. 
3. A person is not to be treated as unable to make a decision, just because it’s an unwise one.
4. Any decisions made must be in the best interests of the person concerned.
5. Any decisions must be the least restrictive option.

As mentioned, Deputies, whether lay or professional, are obliged to have regard to the Deputy Standards as set out by the OPG. These standards apply to both property and financial affairs as well as health and welfare deputies. Deputies are assessed against these standards in an annual report which they are required to send to the OPG.

For more information

For more information on deputyship, please contact our Court of Protection team on 01708 229 444.