Deputyship Orders: What are you on about????

Posted on February 19, 2012

A Deputyship Order is a court ruling which appoints a person to act as a deputy for another. More information is available on the Lakes Legal Limiteds website but this blog is a great introduction for our readers.

A deputy is appointed by the court when a person loses the mental capacity to make decisions on their own behalf and has not made provision for the appointment of an attorney.
The initial and ongoing cost of a deputyship order make the process undesirable and Lakes Legal Limited advise all clients that this option should only be exercised as a last resort.

A deputy is usually a close friend or relative of the person who needs help making decisions but they can also be a professional such as a solicitor or accountant but all deputies must be over the age of 18 and have legal mental capacity.

To be appointed as a deputy an application must be made in the prescribed form to the Court of Protection. This application will be accompanied by a certificate of lack of capacity issued by the subject’s medical practitioner. Some types of deputyship application also require the courts permission before an application can be made.

There are two types of deputyship orders one appointing a deputy to make decisions about Health and Welfare and another to make decisions about Property and Affairs. Each type of order requires a separate application. If the deputy seeks permission to make a particular decision or to be able to take a particular course of action this should be specified in the application.

Once an order has been granted the court will send the deputy a copy of the order which specifies the legal powers of the deputy appointed under the order.

The actions of deputies are restricted by law. Generally a deputy may only make decisions in the subject’s best interests, make the decisions the court says they can make and they must apply a high standard of care when making decisions.

Deputies cannot make decisions when they believe the subject of the order can make the decision themselves, when it will result in the physically restraint of the subject (unless it is needed to prevent them coming to harm), when it goes against a decision made by an attorney acting under a Lasting Power of Attorney, when they want to stop life-sustaining treatment (for example turning off a life-support machine).

Deputies cannot make certain decisions including; making a will or any addition to a will on behalf of the subject, making large gifts out of the subject’s money, holding any money or property on behalf of the subject.

Deputies are closely and continuously monitored by the the Office of the Public Guardian. The deputies order may ask them to complete regular reports for the Office of the Public Guardian so that they can monitor the deputies work. This helps the Office of the Public Guardian to understand the decisions made by the deputy. Reports are usually asked for once a year. The report should record all the decisions made by the deputy on behalf of the subject.

The Office of the Public Guardian can investigate deputies if they believe that they are not fulfilling their duties properly. If deputies make decisions which they are not allowed to make, they might be removed from their position.

Deputies should keep a record of any decisions made in their role as deputy including but not limited to; making a major investment, changing the care a person is getting and selling the subjects property. Deputies should record how they reached the decision, what things they considered and thought about and who they spoke to about it. Deputies should also keep any documents about decisions they have made including but not limited to; receipts, bank statements and correspondence, letters and reports from health agencies or social services.

This information is presented for general guidance purposes only and should not be relied upon or used for any other purpose.