Health and welfare deputyships and when they are needed
There is a distinction between ‘deputyship’ and ‘deputy’. A deputyship is a court order for someone to become a deputy. The Court of Protection appoints a deputy to make decisions for a person once they have lost the mental capacity to make the decision for themselves. The person who is subject to a deputyship order is referred to as a patient.
The role of the deputy is to step inside the patients shoes and make decisions which accords with their best interests if they lack capacity to make the decision themselves.
There are two types of deputy:
1) Property and Financial Affairs and
2) Personal Welfare. A deputy is usually appointed to make decisions about finances and property. The court can also appoint a deputy to make healthcare and personal care decisions, though this is relatively rare.
People with diagnosed illness may have mental capacity to make decisions about their lives including where they live and how they want to live.
Critically, there is no rule that just because the patient has a illness they should be presumed to lack capacity. It has to be shown that they cannot do one of the following
• understand the information relevant to the decision that they are required to make;
• retain the information relevant to the decision being made, long enough to make the decision;
• use/weigh up the information to make a decision (evaluate) and
• communicate the decision by any means.
In some cases, people lack the capacity to consent to particular treatment or care that is recognized by others as being in their best interests, or which will protect them from harm.
When this care might involve depriving vulnerable people of their liberty (i.e. taking their freedom away) in either a hospital or a care home, extra safeguards have been introduced in law to protect their rights and ensure that the care and treatment they receive is in their best interests (see the deprivation of liberty of articles)
Sometimes it will be appropriate, indeed necessary to prevent a vulnerable person from doing certain things. Any long term decision to deprive someone of their liberty is unlawful unless it has been authorized from the outset. Anyone considering applying for authorization must think carefully about whether it is in fact needed; there may be other less restrictive ways in which care and treatment can be given to the person, which does not create a deprivation of liberty.
Why would one get a health and welfare deputyship?
If a person lacks capacity to make decisions about their health and welfare and has not made a valid enduring power of attorney (EPA), or lasting power of attorney (LPA) when they had capacity , it may be necessary for the court to appoint a deputy or deputies to make decisions on that person’s behalf. This is usually the case when there are multiple decisions to be made on a daily or weekly basis,
Furthermore, if a person needs long-term help with decisions about health and welfare the court may decide that it is appropriate to appoint a deputy to make those decisions, rather than the court having to make them
A health and welfare deputy makes decisions about personal health and welfare. This extends to medical treatment and how someone is looked after and covers their healthcare and social care provision. It involves and includes, in regard to an individual who lacks mental capacity, consideration of their beliefs and values.
If a person lacking mental capacity enjoys and actively partakes in different religious rituals, a health and welfare deputy might make decisions in respect ofand upholding this, on the individual’s behalf. They might also consider the living arrangements of the individual who lacks mental capacity i.e. how they find their living arrangements, who they live with, and their relationship with them. Deputies cannot use their position to benefit themselves.
How to become a deputy (very basic summary)
There are two ways in which the court may appoint a deputy: 1) of the court’s own accord 2) having received an application from someone wanting to become the Patient’s deputy. If a person has an EPA or LPA, there is usually no need to appoint a deputy so the applicant should check first as to whether this is the case. The check can be done by completing form OPG100 and sending it or emailing it to the Office of Public Guardian. This service is free of charge.
In most cases, the deputy is likely to be a family member or someone who knows the person well. In some cases the court may decide to appoint a deputy who is independent of the family (for example, where the person’s affairs or care needs are particularly complicated).
It is for the court to decide who to appoint as a deputy. If the application is accepted the deputy will get a court order saying what they can and cannot do. The court can appoint two or more deputies and states how they should act.
The following forms must be completed and signed:
• COP1 – Application Form.
• There are in addition two annexes to this form: COP1A – Annex A: Supporting information for property and affairs applications; and/or COP1B – Annex B: Supporting information for personal welfare applications.
• The COP3 form is the assessment of capacity. This is where an experts opinion is recorded as to if the person has or does not have capacity
• The COP4 is the deputy’s declaration. This is the confirmation that the person or people that seek to become a deputy or deputies understand the responsibilities involved.
• The COP24 is the witness statement.
• In some cases the applicant will have to seek the permission of the court.
Once the application has been registered with the court of protection they will ask the applicant to file some documents within days of getting notice from the court. The applicant must complete certificates of service confirming to the court that they have told the person they are applying to be deputy for and other people named in the application thought to have a relationship with the patient.
The Court of Protection will review the deputyship application and make a decision at least fourteen days after all the other people have been told of the application, this is so they can be given an opportunity to dispute the proposed deputyship. If the matter is disputed the court may order a hearing so a decision can be made as to what is in the patients best interests
If a deputy order is granted the court will let the deputy know what they can and cannot do. The deputy can start acting on behalf of the person as soon as they are appointed if they are a personal welfare deputy.
Once a deputy has been appointed by the court, the order of appointment will set out their specific powers and the scope of their authority. Court orders are different for each deputyship. When the Court of Protection sends the deputy an order, the deputy must make sure they are familiar with the exact areas of authority it covers.
The deputy should read through the court order carefully to check for errors such as names spelt incorrectly. If there are any errors, the deputy should contact the Court of Protection immediately to have them corrected. The new deputy needs to let certain individuals and organizations the Patient has dealings with know that they are the deputy. This is called “registering” the deputyship. The deputy will get official copies of the court order to send to people or bodies, to prove that they are acting on behalf of the person for whom they are acting.