Most people have heard of a Power of Attorney and a ‘Next of Kin’, but perhaps not a Deputyship. The three terms are often used interchangeably, though there are significant differences between them.
What is a Deputy and what is their role?
If a person is assessed as lacking mental capacity, the Court of Protection may appoint someone to act as a Deputy on their behalf. A Deputy can be appointed to manage property and finances or to make health and welfare decisions.
What is the Court of Protection?
The Court of Protection is a specialist Court which makes decisions relating the property and finances, health and welfare and medical treatment for persons who lack mental capacity. A person who lacks mental capacity is commonly referred to as a ‘protected party’ (formerly referred to as a ‘patient’).
The Court of Protection will determine, based on medical evidence, if a person lacks mental capacity to make a specific decision and, if so, what decision is in their best interests.
What is mental capacity and how is it assessed?
Following the principles of the MCA 2005, no individual should be considered to lack capacity simply because of an existing impairment or medical condition. However, where an impairment is present which may have impact on a person’s cognitive ability, and there is reasonable cause to suspect a lack of capacity, an assessment of capacity can be made by a suitably qualified person.
Capacity is decision specific and therefore the test for capacity must be made in the context of the decision, or set of decisions, that need to be made.
The test for capacity is split into two sections which are:
- The Diagnostic Test (Section 2(1) MCA 2005) – to lack capacity an individual must be suffering from an impairment or disturbance in the functioning of the mind or brain; and
- The Functional Test (Section 3 MCA 2005) – the individual must be able to, in relation to the specific decision, understand, weigh, retain, and communicate the relevant information.
An individual must be supported, to have the best chance of passing this test. For example, for an individual who struggles to communicate, it would be expected that they are supported throughout the assessment process to help them communicate and engage to the best of their abilities.
The law presumes that everyone has capacity unless it is established otherwise. A person is said to lack capacity when they cannot make a decision for themselves at the time it needs to be made.
Is a Deputy the same as a ‘Next of Kin’?
A Deputy is different to a ‘next of kin’. The Oxford English Dictionary defines a next of kin as ‘one’s closest living relative or relatives’, but there is no strict legal definition in the UK. Consequently, a next of kin may not be a blood relative and could instead be a partner or close friend who is ‘like family’ to you.
A next of kin does not have legal authority to make decisions like a Deputy, because a Deputy is appointed by way of a Court Order which grants them legal authority to act on behalf of the protected party. A next of kin is not appointed by the Court, and therefore cannot manage the property and finances or make health and welfare decisions on someone’s behalf.
Is a Deputy the same an Attorney?
An Attorney is a person who has been nominated by another to act on their behalf in the future, should they ever become unable to make decisions for themselves. Unlike a next of kin, an Attorney has legal authority to manage another’s property and financial affairs, because they are appointed through a legal document called a ‘Lasting Power of Attorney’.
There are two types of Lasting Power of Attorney:
- Property and Affairs
- Health and Welfare
Crucially, a person can only nominate an Attorney when they have mental capacity at the time they choose to nominate an Attorney. This is what makes an Attorney different from a Deputy, because a Deputy is only appointed by the Court of Protection after a person has lost the capacity to nominate an individual to manage their property and finances.
A Lasting Power of Attorney must be registered with the Office of the Public Guardian.
Are there different types of Deputy?
There are also two different types of Deputy.
A property and financial affairs Deputy will manage the finances of the protected party.
Examples of decisions a deputy might make for their client and the consultation this might involve include:
- Setting annual budgets and seeking investment advice from a specialist advisor;
- Purchasing a piece of assistive equipment, such as an electric wheelchair, with advice from an occupational therapist;
- Increasing a weekly personal allowance following a request from the client and a review with the client of their financial position;
- Making payments of gratuitous care to a client’s parents, further to an application to the Court of Protection for approval;
- Renting a property which can be adapted to meet the client’s needs in the short term, following advice from an accommodation expert and ensuring that preferences expressed by the client and their family are considered;
- Purchasing and adapting a suitable property;
- Employing a specialist care team; and
- Appointing a case manager and treating therapists.
A health and welfare Deputy will likely make decisions about medical treatment, and how someone is looked after.
The authority of the Deputy is set out in the Order from the Court and may contain restrictions on what decision the Deputy can make without Court authority.
A Deputy can also act in a professional capacity or a family member or close friend may be appointed to act as lay Deputy. In some cases, where a protected party has significant assets or a large personal injury or clinical negligence settlement, the Court will prefer a professional Deputy to act.
Joint and Several Appointment
It is possible for two or more Deputies or Attorneys to be appointed jointly and severally. When Deputies are appointed jointly and severally, this means that the Deputies can make decisions independently of one other. This is a practical measure so that if, for example, one deputy is away on holiday, the other deputy can step in and make a decision in their absence. They should consult one another, and both have a duty to report back to the Court.
Sometimes more than one Deputy or Attorney will be appointed on a joint basis. This means they have to make all decisions together and cannot make decisions independently of one another.
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