What is a Deputy? : simplebooklet.com

What is a deputy?Different types of deputiesDutiesA deputy has a signiﬁcant amount of responsibility in relation to the decisions they make on behalf of a person that is deemed to lack capacity. Deputies, whether professional or not, must adhere and refer to the Mental Capacity Act 2005, the associated Code of Practice and Ofﬁce of the Public Guardian’s Deputy Standards, all of which sets out guidance and requirements when acting on behalf of someone who has lost capacity.A deputy is appointed by the Court of Protection and is required to act where a person has lost the mental capacity to manage their own affairs. Deputies are usually appointed to manage a person’s property and ﬁnancial affairs. They can also be appointed to manage their health and welfare, but this is rare.Professional deputies These are usually named legal professionals or Trust Corporations.Lay deputies These are usually family or friends who take on the role of deputy for a loved one or close friend Local authority deputies Where the local authority acts as deputyPanel deputies These are court approved professionals that have applied to be on the panel. They are appointed when none of the other deputy options are appropriate

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Deputies also have a duty to report to the Ofﬁce of the Public Guardian on an annual basis with full details of the decisions they have made on behalf of the person in the preceding year. This report must also include a report of the person’s property and ﬁnances and details of how the deputy has used the person’s funds for their beneﬁt. When would you need a deputy or a new deputy?Fundamentally you would consider a deputy when someone can’t make decisions for themselves and someone needs to make decisions regarding their ﬁnances, agree contracts for them (including tenancy agreements and selling or buying houses), and/or manage their money on their behalf. A deputy can also sign documents on behalf of the person for whom they are appointed as their agent, meaning they can potentially sign a tenancy agreement or passport application where the person cannot.Usually, you would be considering a deputy where there is no authority already in place for someone else to act on that person's behalf (i.e. an attorney appointed under a lasting or enduring power of attorney). However, if there are disputes or concerns over an existing deputy or attorney, or there are concerns that someone might take advantage of the person without a new appointment, then the Court of Protection can decide to appoint a replacement deputy.You should always consider whether you need a deputy, and especially a professional deputy, where there has been a (or there is an ongoing) personal injury or medical negligence claim and the Claimant cannot manage their own ﬁnances. There are beneﬁt and statutory funding advantages in having a deputy manage a personal injury award. Means tested beneﬁts (for example Universal Credit) will assess a person’s savings and income, and if these are above a certain threshold then the person will be ineligible to claim that beneﬁt. The same applies to funding for care under the Care Act 2014 from local authorities. However, ordinarily, capital derived from a personal injury award that is managed by a Court of Protection deputy is “ring fenced”, meaning that the DWP or local authority cannot take it into account when assessing a person’s savings or income. Although this ‘ring fencing’ applies for both lay deputies and professional deputies, there are some complexities that mean that a professional deputy may be preferable: the personal injury funds must not be mixed with non-personal injury funds and a clear audit trail must be maintained showing that the funds many years down the line can be traced back to the award, otherwise the DWP or local authority may argue the funds should not be ring fenced.When would you not need a deputy? There may be times where it is not appropriate for a deputy to be appointed, particularly due to the DWP’s “appointee” system. This is most likely to be the case when a child or adult who lacks capacity to manage their own affairs has no assets that require managing but they are in receipt of beneﬁts. In this situation, an appointee can be appointed by the DWP to collect in a person’s beneﬁts and manage these in a separate bank account. They have no legal authority and their remit is simply to manage the beneﬁts the person is receiving.

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More information can be found on the Government website here.Lay deputy v professional deputyA professional deputy, as opposed to a family member or friend acting as a lay deputy, may be justiﬁed, depending on the circumstances. Factors to consider include:There are also some decisions that a lay deputy will not be able to take themselves, where either a professional deputy might be more suitable, or alternatively a lay deputy would need the assistance of a Court of Protection lawyer to assist with applications to the Court of Protection. Deputies have limited authority to make gifts, provide for those that your loved one would have been expected to, and to make regular payments to family members in recognition of the care they provide. However, deputies also cannot place themselves in a conﬂict of interests, and making any payments to Are there large sums of money to be managed, or invested, where having an independent professional involved would protect your loved one’s interests? If there aren’t then it may not be proportionate to appoint a professional as deputy.Will the deputy need to arrange and superviseinvestments, which might be complex and requirespecialist expertise?Are there many regular payments that need to bearranged by a deputy that would be onerous on alay person to arrange (as well as keep records for,to complete their annual reports)?Are there contentious family dynamics, wherehaving an independent professional takingdecisions might avoid disagreements?Are the family members who might act as deputyalready working full time or even providingsubstantial care to your loved one, and as suchsimply are unable to act as the deputy and manageall of the necessary ﬁnancial arrangements?Are there any complex legal practical issues (largeteams of employed carers, a property to buy andadapt, disputes with statutory bodies regardingfunding, etc...) where having a team of legalprofessional managing and advocating for thevulnerable person would be advantageous?Is there an ongoing personal injury claim? If thereis, and it is the cause of your loved one’s incapacity,then the costs of a professional deputy might berecovered from the Defendant so that it can be aservice your loved one can beneﬁt from hopefullywith no overall cost to themselves;Are there simply no family members who are ableto take on the responsibility of acting as theperson’s deputy?

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themselves or to their family members is likely to be a conﬂict of interests. The solution is either the appointment of an independent professional as deputy, who would not be conﬂicted, or for the lay deputy to make an application to the Court of Protection for speciﬁc authority (although these applications are complex and you should seek legal advice and representation).Some issues will require an application to Court whether a lay deputy or professional deputy is appointed. For example, where a gift needs to be made that is not at a customary occasion (or of a substantial amount) or where your loved one needs a Will but lacks the capacity to make one themselves (which we will discuss at the end of this document). However, these kinds of applications are also complex and we would recommend seeking professional legal advice and representation.DecisionsA deputy will have to make various decisions on behalf of the person which vary greatly. Some of the decisions made in relation to managing the person’s property and ﬁnancial affairs include: Some decisions require separate authority from the court, such as selling or gifting property.It is important to note that a property and ﬁnancial affairs deputy cannot make decisions about the person’s health and welfare: this requires separate authority from the Court of Protection. Ensuring payments of tax and bills;Opening, closing and managing bank accounts;Managing property and investments; Claiming beneﬁts on their behalf;Dealing with ﬁnances generally;Liaising with contacts of the person.

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Professional Deputy FeesA professional deputy is paid for the work they carry out in their role. Where the professional deputy is a lawyer, their legal fees are charged for the initial application to be appointed as professional deputy, and then on an annual basis for managing a person’s affairs. Those fees are paid directly from their funds to the ﬁrm. For a deputy to request a detailed assessment, they must have authority within their Deputyship Court Order and submit a draft bill of costs to lodge with the Senior Courts Costs Ofﬁce (SCCO). The deputy will instruct a cost draftsperson to prepare the bill of costs. Their fees for preparing the bill of costs are charged on a ﬁxed fee basis and paid from the person’s funds. Their fees for preparing the bill of costs are charged in addition to the costs of the deputy and recovered from the person’s funds. What is a detailed assessment? A detailed assessment is where an ofﬁcer of the SCCO reviews the bill of costs, alongside evidence provided by the deputy, to determine whether the work carried out was reasonable, proportionate and necessary. The ofﬁcer may make reductions to the costs claimed within the assessment. The SCCO will decide what ﬁnal amount of costs should be paid to the deputy for their work done during the relevant period. They act as an independent third party in the best interests of the person, to ensure they are charged by the professional deputy fairly. What should you ask a professional deputy about their fees?A professional deputy’s application fees will either be:1. A ﬁxed fee amount plus VAT, which is set out by Practice Direction 19B; or2. A detailed assessment, where the time incurred exceeds the ﬁxed fee. Time spent will be charged on an hourly rate basis. A professional deputy’s annual fees will either be:1. A ﬁxed fee amount plus VAT, which is set out by Practice Direction 19B; or2. A detailed assessment, where the time incurred exceeds the ﬁxed fee. Time spent will be charged on an hourly rate basis. 1. What hourly rate do you charge at?2. What happens if the person does not have a lot of money, but still needs a professional deputy?3. Who will undertake the majority of the work?

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Choosing a professional deputyIt is important to meet with any professional that you are considering as a professional deputy for a loved one. Although every professional deputy will follow the same legal framework, each ﬁrm will have their own approach and different way of working. Meeting with them gives you the chance to decide if they will work well with yourself and your loved one. If possible, it is always best to meet both with the person who will be formally appointed as deputy as well as the lawyer that they will delegate day to day work to. Many professional deputies specialise in either acquired brain injuries (whether children or adults) perhaps as a result of a personal injury or clinical negligence claim or the more elderly clients who have a degenerative condition, such as Dementia. The work is very different and it is important to choose a deputy who specialises in the correct ﬁeld.A professional deputy who specialises in acquired brain injuries will typically be managing signiﬁcant sums of money due to a compensation claim and this brings its challenges. They will be experienced in dealing with high value litigation claims, employing carers to provide care to a person and being heavily involved in the process of building or adapting properties especially for the person. At times it can be a fast-paced environment and their expertise can often be a calming inﬂuence throughout. Similarly, a professional deputy who specialises in the elderly and more vulnerable clients will face their own complexities. In this scenario, the deputy is likely to be dealing with paying care fees to a local authority or care home, seeking authority from the Court to be able to sell their property to fund their ongoing care, managing a person’s life savings and sometimes even foreign assets. Questions to AskBelow are some suggested topics and questions to discuss when you meet a prospective professional deputy, divided depending on whether your loved one needs a professional deputy because of an acquired brain injury or because they are elderly and vulnerable.Acquired Brain Injury How long have you worked as a professional deputy/for how many people with acquired brain injuries have you been appointed?You want to make sure that the person appointed as deputy will have sufﬁcient experience to manage the responsibility you are considering, and preferably ensure they specialise in working clients with acquired brain injuries.

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How do you work with litigation solicitors? (if there is an ongoing claim for personal injury or clinical negligence)A good working relationship between the professional deputy and litigator would be beneﬁcial: the litigator will need information on how the deputy is spending any interim funds to help in the claim, and the professional deputy will need to understand from the litigator what spending is likely to be recovered in the claim and what is not. If we had a spending request, could you talk me through your process for considering it and communicating your decision and who would you consult?This will give you a good picture regarding how the professional deputy will deal with requests on a day-to-day basis. It is important that you feel that the deputy will suitably consider your and your loved one’s wishes, feelings and beliefs.How often would you visit?Deputies are required by the Court of Protection to arrange an annual visit, however the terms of these visits can differ from deputy to deputy. Some deputies will personally visit every year, some will delegate these visits to more junior members of their team where it is appropriate/proportionate, and some will instruct a third-party visitor to visit on their behalf. You will want to make sure that you are happy and comfortable with their processes as this will be one of the key opportunities for you and your loved one to express your feelings and views, discuss how things are being managed and take long term decisions. What is your process for arranging investments, and who will be involved?Similarly, the question above, this allows you to understand the deputy’s decision-making process. However, deciding on an investment portfolio and manager will be an important decision that will have an impact for many years to come, and you want to make sure that you will be happy with how this will be arranged. There are other key long-term decisions that you could also discuss how the prospective deputy would approach. Examples would include purchasing and adapting a property, beneﬁts claims and a Will (or Statutory Will).

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Can you talk me through who I would deal with in your team over the course of the year, and who I could go to if you weren’t available?Delegation of work is important. To provide a cost-effective service, professional deputies need more junior lawyers to manage day to day work, and administrative staff to assist with non-legal work (i.e. making payments, etc). You want to make sure that the prospective deputy’s team is able to make sure that the work involved is done by people of the correct seniority.Additionally, the responsibility a professional deputy holds is so important that it is essential that their function can be carried out, even if someone is on holiday or ill. Talking about contingency planning and who can step in should help provide conﬁdence that they can manage the responsibility of your loved one’s affairs.What if I wanted you to manage my loved one’s affairs differently from your normal process?If you are talking to a prospective deputy and there is something that you don’t like, it might be worth asking if they can be ﬂexible. They might not be able to, there may be good legal or compliance reasons for this, however before making a long-term commitment it is good to make sure you fully understand what ﬂexibility there is and not to necessarily to make assumptions.One common area that professional deputies are often less able to be ﬂexible regarding is the appointment of joint or joint and several deputies. It is possible for a professional deputy to be appointed jointly with a lay deputy (a family member or friend). However, there are practical issues with such appointments, which means that many professional deputies will not agree to such an appointment (or may only do so on certain terms). If this is something that is important to you to consider it would be worth raising and discussing.How would you manage a situation if we disagreed about what was in my loved one’s best interests?It is sadly inevitable that at times you and the professional deputy may disagree regarding what is in your loved one’s best interests, although hopefully never to such an extent that you cannot carry on working together. It is good to understand from the outset how the deputy would approach such a situation and make sure that you are happy with how they might deal with potential conﬂicting opinions on a decision.

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Older adults Other circumstances where a deputy may be appropriate There are some circumstances where a deputy may be required outside of the above examples, and these include where the person has a mental impairment which prevents them from being able to make decisions about their property and ﬁnancial affairs. This impairment could be a learning disability or mental health diagnosis. The people falling in this category may be vulnerable to ﬁnancial abuse and therefore a deputy may be appropriate. Are you on the Ofﬁce of the Public Guardian’s panel of approved deputies? This will help you to understand a deputy’s experience. Many professional deputy appointments arise through referrals from the panel where a professional deputy is required due to a person not having anyone with the legal authority to manage their affairs on their behalf, perhaps because they do not have any family members who can assist, or because they did not make a lasting or enduring power of attorney. Quite often, a professional deputy is appointed due to mismanagement of funds by a former attorney or deputy. My loved one owns a property, how likely is it that it will need to be sold in order to fund their ongoing care? Although it may be difﬁcult for the prospective deputy to give a clearcut answer at this stage, they should be able to explain the different care fees funding requirements and whether your loved one will need to self-fund their own care, in which case, whether any property they own will need to be sold to raise capital for this purpose. How much involvement will there be with my loved one’s family and me?This will depend on the circumstances surrounding the prospective deputy’s appointment. If they are to be appointed as a result of misappropriation of funds from a family member or friend, it may not be appropriate for them to communicate with the family regularly, if at all. However, if it is a straightforward appointment then the prospective deputy will need to consider the loved one’s wishes and feelings and the involvement of the family previously before committing to an answer. How can we help? Our PDF members consist of professional deputies who specialise in acquired brain injuries and also those that specialise in the elderly and more vulnerable clients. A list of our members can be found here

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Statutory WillsStatutory wills are authorised by the Court of Protection following a successful application. The will is authorised to be signed on behalf of an individual who has been deemed to lack testamentary capacity.Testamentary capacity is a legal term used to describe a person’s mental ability to make a Will. The test of capacity is based on case law and requires the person to:A person may have lost, or never had, testamentary capacity due to a learning difﬁculty, illness or injury. Capacity can ﬂuctuate and the level of capacity required may change depending on a person’s individual circumstances and the complexity of their situation.It is important to note that an attorney acting under an enduring or lasting power of attorney or a deputy appointed under an order of the Court of Protection does not have authority to make a Will.Some examples of when a statutory will may be required are set out below: 1. There is no existing valid will 2. There is a signiﬁcant change in circumstances3. Changes to estate 4. Taxation planning To make a statutory will, an application must ﬁrst be made to the Court of Protection. The Court has discretion to consider any wills previously made by the person alongside their current wishes and feelings, if attainable. The Court also has discretion to decide how much weight should be applied to any existing or prior will made by that person. The Court does not have the power to revoke an existing will however they can make a decision to not apply any weight to that will, if, for example, the person was deemed to lack capacity at the time of making that will. 1. Understand the nature of making a will and its effects;2. Understand the extent of the property of which they are disposing;3. Be able to comprehend and appreciate the claims to which they ought to give effect;4. Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

What is a Deputy?

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