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Making decisions

 

How do deputies have to make decisions?

The deputy is required by law to make decisions in the best interests of the person lacking capacity. They have to try and include them as much as possible in the decision making process. The deputy has to think about how would the person concerned make this decision.  They also have to consider any documents or information the person has written, which might help them as their deputy to make decisions for them.

The Mental Capacity Act 2005 Code of Practice at 8.50 outlines how deputies must act. Deputies must:

    • follow the Act’s statutory principle
    • make decisions or act in the best interests of the person who lacks capacity 
    • have regard to the guidance in this Code of Practice 
    • only make decisions the Court has given them authority to make. 

Property and Affairs Decisions

The Mental Capacity Act Code of Practice at 8.35 says that a Financial deputy can be appointed to:

    • Deal with cash assets over a specified amount that remain after any debts have been paid.
    • To buy and sell a person’s property.
    • Where the person has a level of income or capital that the court thinks a deputy needs to manage.

Personal Welfare Decisions

The Mental Capacity Act Code of Practice at 8.38 directs that a Health and Welfare deputy will only be required in the most difficult cases where: 

Important and necessary actions cannot be carried out without the court’s authority.

There is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions

What cannot a Deputy do

There are certain things which a deputy may not is restricted from doing. This is why when making an application for deputy ship order care needs to be taken with constructing the required order which the court is to grant. Solicitors are in a good position to draft suitable orders relevant to the situation which the deputy needs to manage.

The Mental Capacity Act Code of Practice at 8.46 sets out some specific restrictions on a deputy’s powers. In particular, a deputy has no authority to make decisions or take action:

if they do something that is intended to restrain the person who lacks capacity – apart from under certain circumstances:

    • if they think that the person concerned has capacity to make the particular decision for themselves 
    • if their decision goes against a decision made by an attorney acting under a Lasting Power of Attorney granted by the person before they lost capacity, or 
    • to refuse the provision or continuation of life-sustaining treatment for a person who lacks capacity to consent – such decisions must be taken by the court.
      If a deputy thinks their powers are not enough for them to carry out their duties effectively, they can apply to the court to change their powers.

The Mental Capacity Act 2005 Code of Practice 8.50 outlines how deputies are to act. This means that someone considering being a deputy on behalf of a vulnerable adult should think carefully before they take up the role. Deputies must:

    • follow the Act’s statutory principle
    • make decisions or act in the best interests of the person who lacks capacity 
    • have regard to the guidance in this Code of Practice 
    • only make decisions the Court has given them authority to make. 

The Mental Capacity Act 2005 Code of Practice at 8.56 details what deputies can do. Deputies must carry out their duties carefully and responsibly. For example, 

They have a duty to: 

    • act with due care and skill (duty of care) 
    • not take advantage of their situation (fiduciary duty) 
    • indemnify the person against liability to third parties caused by the deputy’s negligence 
    • not delegate duties unless authorised to do so 
    • act in good faith 
    • respect the person’s confidentiality, and 
    • comply with the directions of the Court of Protection. 

Property and affairs deputies also have a duty to: 

    • keep accounts, and 
    • keep the person’s money and property separate from own finances. 

Craybeck Law offers a free one years aftercare service to our deputy clients to help you with being a deputy. Contact Craybeck Law to see how they can assist you with becoming a deputy.

 

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Craybeck Law LLP is a central London law firm with an office in Benfleet Essex. We will come and visit you at home for no extra charge if you live within the M25 area or close to it.

Craybeck Law LLP is authorised and regulated by the Solicitors Regulation Authority (SRA No. 646667)


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