Understanding the role and responsibilities of a Deputy

Application process

The process of becoming a Deputy can take anywhere between nine and twelve months and involves a substantial application process. The powers of the Deputy are set out in the Court Order – your application needs to set out the scope of the powers sought: this can include claiming for and overseeing the benefits, pensions or income of the individual, ensuring that their bills are paid and properties are maintained.

The court must see evidence that the individual is no longer able to manage their own finances (through a capacity assessment completed on a COP3 form), and that the person applying to be the Deputy is eligible for the role. This can include evidence of their own current financial standing, and that they are clear of any historical financial difficulty, including bankruptcy or fraud. To be a Deputy, you must take out a Deputy Bond, and as a form of insurance and a credit check will be required against the Deputy by the Bond company.

Responsibilities and considerations

Due to the complexity of the role, it is common for Deputies to misunderstand or not be aware of their responsibilities, and in some cases, this can lead to overstepping the scope of powers given to a Deputy under the terms of their order or failing to recognise the financial responsibility they hold to their loved one. This can be particularly challenging when the Deputy is a family member, as ensuring a distinction between their role as a loved one and their fiduciary position is critical. For example, the Deputy has no authority to make gifts beyond limited gifts on customary occasions, even if the person lacking capacity previously made regular and generous gifts.

Given the important need for financial safeguarding, Deputies are required to report details of all funds spent, actions taken, and decisions made to the Office of the Public Guardian annually, so clear record keeping, such as bank statements and receipts, is required.

If the Deputy is unsure of what is required of them, they should check and refer to the specific terms of their court order and make use of the in-depth guidance issued by the Office of Public Guardian once they’re appointed. This breaks down the requirements of a Deputyship and provides useful guidance on acting in the individual’s best interests. They can also seek legal advice about their role and the extent of their authority and powers if needed.

Handling property

The sale of a property generally stands outside the terms of a standard Deputyship Order and will likely require a separate court application. There must be clear evidence as to how and why the sale of the property is in the best interest of the person lacking capacity: this can be set out in a detailed witness statement. If the individual has moved into full time residential care, evidence of the Deprivation of Liberty Safeguards documentation will need to be provided to the court for the sale to be authorised.

Key takeaways

Becoming a Deputy is a significant responsibility and requires careful consideration before applying to act. For a Deputy to be successful in fulfilling their legal duty, they must understand that the role is supervised by legal bodies, and so they must be ready to fully cooperate with the Court and Office of the Public Guardian.

Here are some key considerations for those considering the role of Deputy:

• Ensure you are financially responsible and free of any historical debt or offences.
• Make sure you are fully aware of the duties required of you and what it means to be financially responsible for your loved one.
• Maintain clear records of all financial decisions made and actions taken and be ready to submit these to the Office of the Public Guardian.
• Keep your own financial affairs and those of your loved one entirely separate at all times.
• Consider taking legal action early on, to ensure that you and your loved one are supported throughout.

For more information, please contact Donna Holmes.

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