What is a Deputy?
When a person is deemed to have lost mental capacity, they are usually unable to make certain important decisions for themselves. These decisions may relate to the sale of a property, executing a new will or managing their day-to-day affairs such as payment of their bills. As such, they will need someone to act on their behalf to help them to manage their affairs.
If the individual executed a Lasting Power of Attorney (“LPA”) prior to losing capacity, their attorney will be able to make decisions on their behalf. However, if there is no valid LPA, the Court of Protection (“the Court”) will need to appoint a Deputy who will be authorised to make decisions on their behalf.
Any person over the age of 18 is entitled to apply to the Court to become a Deputy. As such, the appointed Deputy may include a family member, a close friend, a neighbour, or a professional such as a Solicitor, for example. It is also possible to have more than one Deputy appointed by the Court and they may be appointed to act jointly (i.e., they must all agree on the decision) or jointly and severally (i.e., they can make decisions together or independently).
What does a Deputy do?
A Deputy can be appointed by the Court to assist a person with the following types of matters:
- Property and Financial affairs
The key responsibility will be to assist with payment of bills and organisation of personal finances. A Deputy may also need to make decisions, once they have obtained the Court’s permission, in respect of the sale and/or purchase of property or how a person’s savings should be invested.
- Health and Welfare
A personal welfare Deputy is entitled to make decisions about medical treatment and how someone is looked after. However, they are less common than a Property and Financial affairs Deputy and will usually only be appointed if:
(a) there is doubt as to whether decisions will be made in someone’s best interests or
(b) someone needs to be appointed to make a decision about a specific issue (i.e., where a person who lacks capacity will live).
Following a Deputy’s appointment, they will be sent a Court order which is often referred to as the “Deputyship Order” (“the Order”) which will set out what the Deputy can and cannot do. A personal welfare order will be sent to the Deputy as soon as they are appointed whereas a Property and Financial affairs Deputy will receive the order once they have set up a security bond.
Once the Deputy is in receipt of the Order, they are entitled to start acting on behalf of the person who lacks capacity. During the period in which the Deputy is appointed, they will be supervised by the Office of Public Guardian (“OPG”). The OPG is authorised to oversee the actions and decisions of the Deputy and can also provide the Deputy with advice and support, where necessary.
Best interest decisions
A Deputy appointed to assist a person with their Property and Financial affairs has a duty to ensure they always act in the person’s best interests whilst making any decision on their behalf. As such, the Deputy should remain mindful of Section 4 of the Mental Capacity Act 2005 (“MCA 2005”).
In particular, the Deputy should consider the following, as far as is reasonably ascertainable, before making any decision:
(a) the person’s past and present wishes and feelings (this may include reviewing a copy of the person’s current will to ensure that any financial decision the Deputy intends to make does not conflict with the person’s intended succession plans);
(b) the beliefs and values that would be likely to influence the person’s decision if they had capacity; and
(c) other factors that the person would likely consider if they were able to do so.
It is therefore evident from the above that having knowledge of the contents of a person’s will and/or codicil will assist a Deputy with being able to ensure any decision they intend to make is in a person’s best interests.
Disclosure of a person’s will – the potential benefits to the client
In December 2019, the Law Society issued some updated useful guidance in respect of “Access and Disclosure of an incapacitated person’s will”. The guidance is aimed at those who store wills and provides useful information as to when it is appropriate to disclose a copy of a client’s will to a Property and Financial affairs Deputy.
The benefits of disclosing a client’s will to their Deputy means that the Deputy will be in a better position to be able to:
(a) obtain and act upon appropriate professional advice;
(b) ensure appropriate investments are made;
(c) apply to the Court for an order to save a specific legacy (so far as possible) where disposal of an asset is required;
(d) apply to the Court, where necessary, for the approval of a statutory will to ensure that the new will if approved continues to reflect the intentions of the person who lacks capacity and the relevant circumstances; and
(e) arrange for the safekeeping and storage of a particular asset.
However, before agreeing to disclose a will, those holding a client’s will may wish to ask for a copy of the Deputy’s Order. This will provide them with confidence that that there is nothing included within the Order which states that the Deputy is not entitled to see a copy of the client’s will.
Furthermore, it may also be good practice for those holding a client’s will to write to their client in the first instance to try to seek their consent to disclose. Whilst this may not always be possible, or appropriate depending on the circumstances, if no objection is received from the person who lacks capacity, there is less cause for concern when agreeing to disclosure.
In the event that disclosure of the will is made to the Deputy, the Deputy should also ensure they consult and try to involve the person for whom they act in respect of any significant decision they intend to make on their behalf. The Deputy will also be expected to report any significant decisions to the OPG when submitting their annual report.
When disclosure may not be appropriate
Whilst it is normally in a client’s best interests to disclose their will to their Deputy, there may be occasions where disclosure is not appropriate. For example, if a client has provided their solicitor who was responsible for drafting their will with clear instructions that their will should not be disclosed to anyone prior to their death, those holding the will should not disclose it to anybody including a Deputy. However, it is important to be aware that if the Deputy has obtained a specific Order from the Court in respect of disclosure of the will, compliance will be required.
In the event that those holding the will do not believe that disclosure is in the person’s best interests, they are entitled to submit a witness statement, in the form of a COP24, to the Court seeking a variation of the Order. The witness statement should include reasons and explanations as to why the Court should agree that the will should not be disclosed.
Furthermore, if those holding a client’s will have concerns about the Deputy and believe, for example, that the Deputy may be acting in breach of the principles included in the MCA 2005 Code of Practice, it may be appropriate to refuse disclosure on the basis that it is not in the client’s best interests.
Examples of concerns may include, but are not limited to, the following:
(a) the Deputy wishes to transfer an asset to themselves or someone related or connected to them;
(b) the Deputy is not ensuring or making appropriate arrangements for the client’s care fees to be paid;
(c) there is a live investigation into or an application being considered by the Court for the removal of the Deputy; or
(d) the Deputy has had an unexpected change in lifestyle or circumstances.
In the event that a decision is made not to disclose, a refusal notice should be provided to the Deputy and the OPG should be informed of any concerns in respect of the Deputy’s behaviour. Depending on the nature of the concerns raised to the OPG, they may require disclosure of confidential information. It may be appropriate to seek independent legal advice in these circumstances.