From the #FreeBritney campaign, a protest aiming to end the Conservatorship over pop singer Britney Spears to last year’s film “I Care A Lot”, starring Rosamund Pike and Peter Dinklage, where a shady lawyer schemes to steal all the assets from their elderly charges, it feels like the world of Deputyships is getting a bad press at the moment.
Whilst both of these examples have come from America, where the laws are much different, these are two examples that people bring up when I try to explain what I do every day. I can’t help but feel that these cases, one of which is a rather outlandish film (albeit entertaining if you suspend your disbelief surrounding the actual law), are fuelling a lot of misconceptions about Deputyships, and I find that there seems to be an air of mistrust around the whole situation. I am hoping that I can explain some of the more common issues here and help to alleviate some of those concerns.
What is a Deputyship?
When a person loses mental capacity, or the ability to make decisions for themselves, someone else must be appointed to make those decisions for them. Mental capacity can be lost in a number of ways, such as through an accident, an illness or even a brain injury at birth. If that person had not appointed an Attorney before they lost capacity, an application to the Court of Protection must be made to ask the Court to appoint someone to act for them. This is achieved through a Deputyship Order.
There are two types of Deputyship Order. The first is a Personal Welfare Order, which authorises a Deputy to make decisions about issues such as where the person lives, and whether they consent to certain medical treatment. The other, much more common Order relates to Property and Financial Affairs, which authorises decisions in relation to the person’s finances and assets.
Does the Deputy make all the decisions?
The notion of losing control of your life is a very scary concept. In the film “I Care A Lot”, the elderly charge of the shady lawyer was issued with an Order she knew nothing about and was forced into a care home as her beloved house went up for sale to feed the lawyer’s pockets. Fortunately, this could not happen in real life.
Mental capacity is not a concrete concept. Just because a person lacks the capacity to deal with complex decisions does not mean they are unable to deal with smaller, everyday decisions. It is the Deputy’s job to work with the person and support them to make a decision or contribute as far as they are able to. Once it is clear that the person is unable to make the decision, the Deputy must take steps to work out what decision the person would have made, not what the Deputy themselves would do in the situation and carry out those wishes. This is done through liaising with family members and friends, looking at the person’s past behaviour and listening to their preferences.
It is often the case that a person can be left alone to conduct their day to day life, usually with support from carers or family members. The Deputy would then work behind the scenes to manage the complex decisions whilst ensuring that the person can go about their usual business largely uninterrupted, often with a regular allowance that is calculated to give them the freedom to do what they want without putting them at risk of advantage being taken of them.
Aren’t Professional Deputies getting paid for their services? If they are in charge of the money who is watching what they pay themselves?
Put simply, the Court of Protection. The fees of Professional Property and Financial Deputies are monitored very closely. Once a year, on the anniversary of the Deputyship Order, the Deputy must submit a Bill of Costs along with their files to the Senior Court Costs Office for assessment. These costs are then assessed to ensure that the costs are reasonable and proportionate when considering the size of the individual’s estate and the work that had to be carried out that year. Even the hourly rates are set by the Court, so the Deputy cannot charge more than a fair and reasonable amount for their services.
Around the same time, the Deputy must also submit a report to the Office of the Public Guardian, or OPG, giving a full account of the person’s assets, decisions made and any actions the Deputy plans to take in the coming year.
As you can see Deputies are not just given the power to do whatever they want. Anyone with concerns about the way a Deputyship is handled can address these to the OPG who will investigate. And just because a person has lost mental capacity it doesn’t mean that they are cut out from any future decisions. In fact, it is a key premise of the Mental Capacity Act that they are kept very firmly in the centre of all decisions made and supported to contribute to any decision over their affairs as far as possible.
We hope this has helped to clear up some of the more common concerns about Deputyships. The concept can seem daunting, but this does not have to be the case, our private wealth solicitors are here to help and advise you. In a successful Professional Deputyship, the relationship is a very close and collaborative one – very far away from the situation represented by the malicious Conservator played by Rosamund Pike in the film.