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Types of Deputyship

 

Types of Deputyship 

There are two types of deputyship order; a financial and a health & welfare deputy. 

What can a Financial Deputy do?

The Mental Capacity Act Code of Practice at 8.35 says the court will appoint a deputy to manage a person’s property and affairs (including financial matters) in similar circumstances to those in which they would have appointed a receiver in the past. If a person who lacks capacity to make decisions about property and affairs has not made an EPA or LPA, applications to the court are necessary: 

    • for dealing with cash assets over a specified amount that remain after any debts have been paid 
    • for selling a person’s property, or 
    • where the person has a level of income or capital that the court
      thinks a deputy needs to manage. 

Health and Welfare Deputys

The Court of Protection is often hesitant to grant Health & Welfare deputyships. Their view is that health and welfare decisions can be made in the vulnerable adults best interests by the healthcare professionals without resorting to a deputyship. 

When thinking about becoming a health and welfare deputy on behalf of someone lacking sufficient understanding there are several points to consider.

  • What does the law and relevant Code of Practice say?
  • Is the person who wants to be the health and welfare deputy the most appropriate person with suitable skills and abilities?
  • Are they already involved in making health and welfare decisions?

There is no guarantee the court will grant a health and welfare deputyship order. It is more likely where an application is made on behalf of someone who has never had sufficient mental capacity of understanding. It though would still require evidence to show why an application should be granted.

When to appoint a health and welfare deputy 

The Mental Capacity Act Code of Practice provides details on when a health and welfare deputy is required and how they should act. The Code of Practice at paragraphs 8.38 – 8.39 states the following (P refers to the person lacking mental capacity). 

The Code of Practice says at 8.38 deputies for personal welfare decisions will only be required in the most difficult cases where important and necessary actions cannot be carried out without the courts authority or

there is no other way of settling the matter in the best interests of the person you are caring for to make welfare decisions 

At 8.39 the Code of Practice gives examples of when a health and welfare might be required include:

  • someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court
  • the most appropriate way to act in P’s best interests is to have a deputy, who will consult relevant people but have the final authority to take decisions
  • there is a history of serious family disputes that could have a detrimental effect on the person’s future care unless a deputy is appointed to make decisions 
  • P is felt to be at risk of serious harm if left in the care of family members. In these rare cases, welfare decisions may need to be made by someone independent of the family, such as a local authority officer. 

Joint and Several Deputies

Just as with a lasting power of attorney, deputies may be appointed individually or with someone else. If appointed with someone else this can be to act either jointly or jointly and severally. Severally means that the deputy may act independently of the other appointed deputy if necessary.

The Mental Capacity Act Code of Practice says about appointing deputies at 8.42. The court can appoint two or more deputies and state whether they should act ‘jointly’, ‘jointly and severally’ or ‘jointly in respect of some matters and jointly and severally in respect of others’.

  • Joint deputies must always act together. They must all agree decisions or actions, and all sign any relevant documents. 
  • Joint and several deputies can act together, but they may also act independently if they wish. Any action taken by any deputy alone is as valid as if that person were the only deputy. 

Deputies may be also appointed jointly for some issues and jointly and severally for others. For example, two deputies could be appointed jointly and severally for most decisions, but the court might rule that they act jointly when selling property (MCA Code of Practice 8.43).

Craybeck Law can help you through the minefield of becoming a deputy contact us now on 0800 254 5262.

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