What happens if someone is unable to make a decision for themselves and therefore needs someone to make decisions for them based on their best interests?
In cases such as this, it is said that the person who is unable to make the decision has ‘lost capacity’. Capacity may have been lost for various reasons, such as:
- they have suffered a serious brain injury or illness;
- they have dementia;
- they have severe learning disabilities
In the event that someone has lost capacity without making an Enduring Power or a Lasting Power of Attorney, it is likely be that a Deputyship Order will be required to give someone the power to manage that person’s property and financial affairs and make decisions about their personal welfare. As a Deputy, you will have authorisation from the Court of Protection to make decisions on that person’s behalf.
What does it mean to be a Deputy?
You may be asked, as a Deputy, to manage someone’s property or financial affairs. This can include simple things like paying their bills or helping them to withdraw money to pay for day to day expenses. It may, however, involve more complex issues such as setting up pensions and managing investments.
You may be asked to look after someone’s personal welfare which may include making decisions about medical treatment and how someone is to be cared for.
It is possible to be made a Deputy for either or both of the above.
As well as making decisions, there are other requirements and obligations placed on Deputies. This includes sending an annual report to the Office of the Public Guardian each year which explains the decisions you have made throughout the year.
As a Deputy, you should consider whether the person for whom you are making the decision can be consulted can be involved in the decision making process. It may be that their level of capacity fluctuates and therefore they are able to be involved in making decisions on one day but not others.
The Court of Protection does provide an Order which will tell you what you can and cannot do in your role as deputy and general guidance is available which includes:
When making a decision for another person, you must:
- make sure it is in that person’s best interests;
- consider their past actions and decisions;
- ensure the standard of care you are working to is high – this may mean that other people become involved and advice is sought from relatives and professionals before a decision is made;
- ensure that the person who you are making the decision for understands, as much as possible, the decisions which are being made for them and what is going to happen;
- make sure that the decisions are recorded in the annual report.
Whether you are making an application to become a Deputy or someone has asked you whether you would take on the role of a Deputy, it is advisable to seek independent legal advice so that you are aware of you responsibilities and obligations.
How to apply to become a Deputy
Firstly, you need to make sure that you meet the specific requirements to be a deputy:
- A Deputy must be 18 or over.
- Deputies should know the person about whom the Order is made well and will therefore usually be a close relative or friend (unless they are a professional deputy, such as an accountant, a solicitor or a Local Authority representative).
- A Deputy for property and financial affairs should have the skills to make financial decisions for someone else.
Once it has been determined that you are able to act as a Deputy, you will need to complete the necessary papers to make an Application to the Court. You will need to send an assessment of capacity form with your application which confirms that the person for whom you are making the Application does lack capacity and requires a Deputy to be appointed.
If you’d like to find out more, give one of our expert lawyers a call today on 01904 655442. We offer a free initial advice meeting where we can explain the process to you. We will explain the procedure in plain English and ensure that you understand the process before you choose how to proceed. Our friendly team are always on hand to answer any questions you may have.
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