Acting as a Deputy: Your Powers and Duties Explained – Property & Finance

If you are named as a Deputy in an Order from the Court of Protection, then you will be required to make decisions about the affairs of a friend or family member. This will be because they now lack capacity to manage their own affairs. Perhaps your friend or relation has special needs, has had an accident or illness, or is living with Alzheimer’s or a different kind of Dementia.

As a Deputy, you will be authorised by the court to make certain decisions on their behalf, but you need to be mindful of the legal framework which regulates the use of your powers.

The Deputy Order

The scope of your authority as a Deputy will be set out in the Deputy Order from the court, and you will need to read this carefully to make sure you understand it. You must also check that it covers all the decision-making and actions you feel you will need to make on behalf of your loved one.

There will be some restrictions on your powers that will be set out in the Order. In addition, all Deputies must act within the following five statutory principles:

• A person must be assumed to have capacity unless it is established that he or she lacks capacityA person must be assumed to have capacity unless it is established that he or she lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so are taken without success.
• A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.
• An act done, or decision made, under the Mental Capacity Act 2005 for, or on behalf of, a person who lacks capacity must be done, or made, in his or her best interests.
• Before the act is done, or the decision is made, the Deputy must consider whether its purpose can be as effectively achieved in a way which is less restrictive of the person’s rights and freedom of action.

Code of Practice

As a Deputy, you need to know about the Code of Practice for Mental Capacity 2005. This Code of Practice provides guidance for anyone who works with, or cares for, a person who lacks capacity. The section of the Code that applies to Deputies says that Deputies must:

• Act with due care and skill
• Not profit from their position as deputy
• Not delegate, unless authorised to do so (although you can work with a solicitor or other professional to help you)
• Act in good faith
• Respect the confidentiality of your loved one’s information
• Comply with the directions of the Court of Protection
• Keep accounts and good records
• Keep your loved one’s money and property separate from your own

Conflicts of Interest

During your role as deputy you must also look out for any conflicts of interest that may arise. A conflict of interest is where your interests may not be aligned with those of your loved one. For example, where you might derive a personal benefit from making a certain decision.

In order to avoid this, we recommend the following:

• Keep funds belonging to you and your loved one separate
• Make investments in your loved one’s name, where possible
• Apply to the Court of Protection to endorse any financial transaction where there is a potential conflict of interest (for example, a loan to the Deputy or member of their family or an investment in the Deputy’s business).