There is always a concern about how decisions can be made for those who lack capacity to make decisions for themselves. This can be the case when dealing with a young person with a complex mental health condition or for someone who is losing capacity in later life. One way is to obtain a deputyship order from the court of protection.
When a person lacks capacity (referred to as 'the patient') to make decisions about the property and financial affairs or health welfare and does not have the benefit of a valid lasting power of attorney or enduring power of attorney, the court of protection may appoint a deputy. The court will provide a deputy the power to step inside someone else's shoes and make the decision for them.
There are two types of deputyship's which can be obtained.
- Property and Affairs Deputy which gives the deputy control over the person's financial arrangements to include their property such as authority the area of paying bills, organising a pension or facilitating the payment of care provision such as if required a care home or help within the home.
- Personal Welfare Deputy this can include control over making decisions about the manner in which somebody is looked after both in the context of the care that they are provided with and also with regard to medical treatment to include care within the hospital.
The court in general would prefer to approve making one-off decisions itself, however if it can be shown that multiple decisions are going to have to be made in relation to someone's care that the court would be more inclined to provide a deputyship. When considering whether to appoint a deputy to make decisions on behalf a person lacks capacity the court will consider the best interest of the person. The court will consider whether the proposed deputy is trustworthy and has the appropriate level of skill and competence to carry out the necessary tasks.
Who can be appointed a deputy their powers and their duties
In the majority of cases, the deputy is likely to be a family member or a close friend. The court can appoint two or more deputies.
A decision would also have whether if there is more than one deputy if they are to be given the power to act along or only be able to act as a group, referred to as acting jointly or severely or just jointly.
If they act jointly then they must make all decisions together in agreement. The problem is however If they are in disagreement then they must protect the back to the court protection them to make a determination relation to their area of dispute.
If they however are instructed to act jointly and severally it means they can act alone independent of their fellow deputies.
A deputy must consider if a patient a patient has capacity to make decisions themselves if not the must always make the decision in their best interests and only make decisions the courts given them authority to make, if the powers given by the court are not wide enough the deputy can ask the court to make a decision in question or asked the court to change the deputy's powers.
Deputies must carry out their duties carefully reasonably they have a duty to:
- act with due care and skill;
- not take advantage of their situation or put themselves in a position where their personal interests conflict with their duties (this is called fiduciary duty);
- not delegate duties unless authorised do so;
- act in good faith;
- respect the persons confidentiality
- and comply with the directions of the court protection
Property and financial affairs deputies also have a duty to keep accounts and keep the persons money property separate from their own finances.