What to do when a person cannot make decisions for themselves
In 1960, the average life expectancy in the UK was 61 years. By 2019, this figure had risen to 81 years (79 for males and 83 for females). These ‘extra’ years may seem like a blessing and, conversely, a curse, because with greater age comes the increased likelihood of ill-health, dementia and loss of mental capacity (the ability to make decisions).
One way of ensuring a loved-one is cared for once they lose capacity is to set up a Lasting Power of Attorney (LPA). An LPA enables the donor (person who is appointing an attorney) to name a trusted person (the attorney) to manage their affairs if they lose the mental capacity to make decisions for themselves. Once mental capacity is lost, decisions regarding the donor’s financial affairs and welfare will be determined by the attorney(s) and not someone appointed by the Court of Protection (COP).
Loss of mental capacity and deputyship orders
Sometimes it’s really difficult to spot when a loved-one is not coping. Many elderly people put on a determined act of independence and by the time a loved-one or friend eventually finds out that the person needs help in making important decisions, it’s often too late to put an LPA in place.
When a vulnerable party has no LPA, and there is medical evidence of mental incapacity, they will be placed under the protection of the Office of the Public Guardian (OPG).
The COP will appoint a deputy under a deputyship order to make decisions on their behalf. The deputy can either be a professional deputy (such as a solicitor) or a lay deputy who is typically a family member.
Family members or close friends can make an application to the COP to become a deputy for their loved-one. These applications are complex and time-consuming and, once appointed, a deputy is accountable to the OPG for their handling of the protected party’s affairs for as long as the deputyship order is in place. When issuing a deputyship order, the COP will ensure that the applicant is suitable and can be trusted to put the needs of the protected party first.
What does a deputyship order do?
A deputyship order will clearly set out the deputy’s individual powers in relation to decision-making for the protected party. A deputy’s role may relate to looking after the person’s property and affairs (including where they will live or whether they go into care), and/or their personal welfare (including medical treatment, general healthcare, and anything required for their general well-being).
A deputy must always act in the protected person’s best interests, using care and skill (a duty of care). They must never act for their own financial gain (fiduciary duty) and they must respect the protected person’s confidentiality, known choices, and preferences when making decisions.
A deputy for property and affairs will need to keep accounts regarding the protected party’s finances. Both types of deputy will need to complete an annual deputy report which provide the OPG with information about any decisions made, how the decisions were arrived at, and the care arrangements in place. A property and financial affairs deputy will be required to report on all the financial decisions made and any purchases or sales made on behalf of the protected party. The deputy may be required to produce evidence, such as bank statements, in respect of financial transactions.
Relinquishing a deputyship
There may come a time when a deputy no longer wishes to continue being a deputy or they may become unable to carry out their duties. This can occur when lay deputy is incapacitated through illness or becomes vulnerable themselves, and sometimes it simply may be that they no longer have the time to adequately fulfill their role.
In cases of professional deputies, it may be necessary to relinquish a deputyship on retirement or if the deputy changes career or moves to a new legal practice.
When a deputy wishes to be replaced, hopefully a new deputy can be found and the COP will decide whether the new applicant is suitable. If no deputy applies for the role, the COP will appoint a professional deputy to act on the protected party’s behalf.
Changing a deputy
If the protected party or their family suffer a breakdown of relationship with the deputy or they feel the deputy is not carrying out their duties correctly, they must apply to the COP to have the deputy discharged and replaced. They will need to supply details of a new, proposed deputy and confirmation of the resignation of the current deputy.
When does a deputyship order end?
The authority of a deputy will remain in place under the terms of the deputyship order unless:
- the protected party regains capacity and no longer falls under the jurisdiction of the OPG.
- the protected party passes away, at which time the powers of the deputy come to an immediate end and the deceased’s affairs will thenceforth be handled in relation to probate and inheritance laws. The deputy has a legal duty to notify the Office of the Public Guardian when a protected party dies.
A court order from the COP will be required to formally discharge the deputy.
Solicitors for LPAs and deputyship
The rules and processes regarding deputyship are complex and we have only scratched the surface in the article above. In most cases involving vulnerable people who have lost mental capacity, it is advised to seek the advice of a solicitor about their circumstances before making an application to the COP.
Our team of solicitors has years of experience handling lasting powers of attorney and deputyship applications and we act for vulnerable adults and minors in professional deputy capacities. Contact us today if you would like to discuss the creation of a lasting power of attorney or if you need to apply to the Court of Protection for a deputyship order. To make an appointment with a member of our legal team, please email firstname.lastname@example.org or telephone 0208 464 4242. For our Surrey offices, please call on 01372 750100