Understanding your powers as a lay Deputy

When a person becomes unable to make decisions as a result of mental incapacity, the Court of Protection may potentially appoint a Deputy to act on their behalf.

Deputies can either be partners, family members or close friends – referred to as ‘lay Deputies’ – or dedicated professionals. In both instances, the role involves making decisions in respect of the person in question (known as ‘P’) where they are unable to make these for themselves.

It’s important to note that effectively managing the responsibilities of Deputyship also means understanding the limits of your powers. In other words, knowing what isn’t within your remit.

If you do feel that additional powers are necessary, you have the ability to apply to the Court for greater authority – to be decided on a case-by-case basis.

What are the limits of my powers as a Deputy?

Deputyship powers are granted by the Court of Protection and are generally tailored to P’s individual needs and circumstances. This means that your authority over P’s affairs is not unlimited, and so it’s important to be aware of your boundaries.

Property and financial decisions

Financial Deputies’ powers are typically limited to managing the individual’s property and financial affairs.

This remit includes tasks such as paying bills, managing investments and buying or selling property on P’s behalf.

However, there are limitations on certain transactions – including making large gifts or selling assets (e.g. a family home) – which may need explicit Court approval before proceeding.

The limitations of a Deputy’s authority are set out within the Deputyship Order which appoints them, and can be amended by any subsequent Orders.

In addition, Deputies should take careful note of the Office of the Public Guardian’s Deputy Standards, which are easily obtainable online. There is separate guidance available for Lay Deputies, Professional Deputies and Public Authority Deputies.

Personal welfare decisions

It is still far less common to have a Deputy appointed in respect of making personal welfare decisions, even after the case of Lawson, Mottram and Hopton (2019). Such decisions are generally expected to be made within a collaborative best interest decision making framework.

If this is an issue which arises, you may wish to consult a Health and Welfare specialist.

Power of Attorney vs Deputyship: what’s the difference?

Crucially, the powers of a Deputy are different from those of an attorney appointed under a Lasting Power of Attorney (LPA) arrangement.

While LPAs are made by the individual in advance, Deputyships are imposed externally by the Court of Protection once P has already experienced a decline in capacity.

For this reason, the scope of your powers as a Deputy may be more restricted and less flexible than an attorney’s powers under an LPA (as the extent of the latter will typically have been explicitly consented to by the relevant person beforehand).

Can I apply for additional powers under the Court of Protection?

Sometimes a Deputy may find that the powers initially granted to them are not sufficient to enable them to look after P’s interests effectively.

If you find yourself in this situation, you can apply to the Court of Protection for additional powers or to request variations to your existing powers.

Before applying, you should carefully consider whether your current powers are truly insufficient or whether there is another way to address the issue.

For example, if you need to make a major financial decision – for instance, selling a house or investing large sums – and your powers do not permit this, you may need to seek approval from the Court.

The application process

In order to obtain additional powers, you will need to submit a formal application to the Court of Protection. This will typically involve:

• Completing the relevant forms – you will need to complete a set of Court forms that outline the specific powers you are seeking over P’s affairs
• Providing supporting evidence – you will need to demonstrate why the additional powers are necessary, which may include third-party opinion from medical professionals, social workers or financial experts
• Potential court hearing – depending on the nature of your request, a hearing may also be required. The Court will assess the application and decide whether the proposed changes are in P’s best interest

What types of additional powers can I apply for?

You can make a request for several types of additional powers depending on the situation, including:

• Authority to make specific financial decisions – if the current powers do not extend to certain financial matters (such as buying or selling a property, or managing investments), you may apply for the power to do so
• Authority to make gifts – there is normally authority for the Deputy to make gifts on ‘customary occasions’ for instance birthdays, however great care should be taken when considering whether larger gifts perhaps are appropriate or may fall outside existing authority and require a specific application.
• Authority to put in place a Statutory Will – this is a complex process, but may be necessary in certain circumstances. A Deputy does not have authority, unless specifically granted by the Court following an application, to execute a Will on behalf of an incapacitated person
• Authority to take steps to obtain a Grant to administer a deceased person’s estate – this may be necessary where P is a beneficiary under a deceased’s estate, and is entitled to administer the estate in order to realise the benefit from it, but is incapable of doing so. The Deputy can be authorised to take steps to do this
• Emergency powers – in cases where urgent decisions need to be made and you do not currently have the required authority, you can apply for temporary or emergency powers. It is important to note that it is entirely for the Court to determine whether they consider, in their view, any application made to be urgent

How we can help

Given the complexities of Court of Protection matters – and the potential for delays or complications in the application process – we would suggest seeking professional advice before applying for additional powers.

A Court of Protection specialist will be able to guide you through the process and help to ensure that your application is robust, complete, and truly in P’s best interests.

If you need expert assistance navigating the Court of Protection or seeking additional powers to oversee a loved one’s affairs, contact our experienced Court of Protection team at [email protected] or by calling 03333 058375 today. We’re here to help.