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Written on 11th June 2021 by

If a person lacks the mental capacity to make their own decisions then an application can be made to the Court of Protection for the appointment of a Deputy.

Types of Deputyship

As a brief overview, there are two types of Deputy:

1.    Property and Financial Affairs Deputy; and

2.    Personal Welfare Deputy.

A Property and Financial Affairs Deputy would do things like paying the person’s bills and managing their investments whereas a Personal Welfare Deputy would make decisions about medical treatment and how someone is looked after.

You can apply to be one type of Deputy or both. Property and Financial Affairs Deputyships are more common.

What duties does a Deputy have?

A Deputy has a legal duty to have regard to the Mental Capacity Act 2005 Code of Practice (“the Code”). The Code explains how the Mental Capacity Act 2005 (“the MCA), which covers England and Wales, operates on a day to day basis and offers examples of best practice. The Code is an important source of guidance and information for Deputies.

Section 1 of the MCA sets out five key principles:

  1. Every adult has the right to make decisions for themselves. It must be assumed that they are able to make their own decisions, unless it has been shown otherwise.
  2. Every adult has the right to be supported to make their own decisions. All reasonable help and support should be given to assist a person to make their own decisions and communicate those decisions, before it can be assumed that they have lost capacity.
  3. Every adult has the right to make decisions that may appear to be unwise or eccentric.
  4. If a person lacks capacity, any decisions taken on their behalf must be in their best interests.
  5. If a person lacks capacity, any decisions taken on their behalf must be the option least restrictive to their rights and freedoms.

What decisions can a Deputy make?

If you are appointed as a Deputy, you will receive a Court Order which sets out what you can and cannot do. Every Order is different.

Before deciding that someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves. For example, does a person understand better at a particular time of day? What is the way best way of presenting information to the person?

If someone lacks the capacity to make a decision and the decision needs to be made for them, then the MCA states the decision must be made in their best interests. It should never be made in the best interests of the person making the decision.

The MCA provides a non-exhaustive checklist to consider when deciding what is in a person’s best interests.

What if the decision a Deputy wishes to make is not in the Court Order?

In this situation, the Deputy can apply to the Court to either make the particular decision required or apply to the Court to change their Deputy powers so that they can make the decision required.

Are there any decisions a Deputy cannot make?

A Deputy cannot make a decision for the person if they can make the decision themselves.

There are some specific decisions which a Deputy cannot make. These include consenting to marriage or civil partnership and consenting to sexual relations.

How can we help?

If you have any queries or questions about mental capacity or Deputyship then please contact our specialist Court of Protection team by email on cop@boyesturner.com.