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The Court of Protection is a specialist court which deals with issues relating to people who lack the capacity to make specific decisions. The Court appoints Deputies or makes decisions in the best interests of those who can’t do so for themselves.

A Deputy is a person appointed by the Court to manage the personal welfare or the property and affairs of another person in these circumstances e.g. when a person with dementia can no longer collect their income and benefits or sell assets to pay for care. As a Deputy, you are legally responsible for acting and making decisions on their behalf.

Deputyship

When appointed, a Deputy receives a Deputy Order which sets out their specific powers in relation to the person who lacks capacity. These will depend on the needs of that person but could apply to finances, personal welfare and consent for medical treatment and social care interventions.

The decisions made by a Deputy are extremely important as they can have a major impact on the person who lacks capacity. The Court of Protection’s guidelines state that Deputies should carry out their responsibilities sensitively, responsibly and rigorously, always make decisions in the person’s best interests and make only those decisions authorised by the Court Order.

Deputies are also required to comply with the Mental Capacity Act 2005, which is underpinned by the following five statutory principles:

1. Every adult has the right to make their own decisions and must be assumed to have capacity unless it is proven otherwise.
2. People must be given all appropriate help before they can be considered unable to make their own decisions.
3. Individuals have the right to make unwise decisions, including decisions that others may consider eccentric.
4. Anything done for or on behalf of a person who lacks capacity must be in their ‘best interests’.
5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

Deputies are furthermore required to be familiar with the Code of Practice which provides information and guidance for everyone affected by the Act. More details are available from the Office of the Public Guardian’s website: www.publicguardian.gov.uk.

Making decisions

This will depend on what the Court has specified you should do in the Order appointing you as Deputy, but, as mentioned, must always be in the person who lacks capacity’s best interests. Things you should consider include:
  • Involving the person who lacks capacity as much as you can in any act or decision
  • Considering any feelings, values, views, beliefs or wishes they have made known in the past
  • Consulting others such as family, friends, carers, other Deputies
  • Identifying any additional factors that the person may have considered if they had been able to do so.
If a decision you wish to make on a person’s behalf is not in the Deputy Order, or if you feel that the powers you have been given are restricting your ability to carry out your duties effectively, then you can apply to the Court of Protection either to make the particular decision needed or to change your powers so that you are able to make that decision.

There are also a number of restrictions on Deputy’s powers, for example a Deputy has no power to make a decision or take an action if they believe the person actually has the capacity to make the decision for themselves.

For more information, please refer to www.publicguardian.gov.uk.

If you’d like help in making an application to the Court of Protection, Lawson-West can offer free initial advice and assistance. Please contact Nadia Faki on 01858 445 480 for details.