Deputyship and Parental Responsibility
Becoming a Deputy
A deputy is appointed to make decisions for someone who lacks mental capacity. Family or friends can apply, they must be over 18, of sound mind, and free of disqualifying convictions or financial issues. Duties include following the Mental Capacity Act, keeping thorough records, and submitting annual reports.
Role Overview
Being a deputy is different from being an appointee (only manages benefits). Deputies can manage:
– Personal welfare: decisions about care and medical treatment.
– Property and financial affairs: managing money and assets.
Applications go through the Court of Protection (approximate fee: £420), and appointees receive a court order detailing their powers. Annual supervision fees apply. Contact the Office of the Public Guardian (OPG) or seek legal advice for complex cases.
Applying as a Personal Welfare Deputy
– Complete forms (available on GOV.UK), including a mental capacity form completed by a professional.
– Inform the person concerned and notify at least three interested individuals.
– Submit confirmation of notifications.
If there are no objections within 14 days, the court will review the application; hearings are held if necessary.
Applying as a Property and Financial Affairs Deputy
– Inform the person and three other stakeholders.
– Have stakeholders complete forms and submit them with your application online or by post.
Hearings are rare in these cases. The court communicates its decision directly.
Deputy Responsibilities
Deputies must follow the court order, report annually to the OPG, and provide evidence of decisions and expenditures.
Under-16s and Young People
Parents hold ‘parental responsibility’ until age 18, covering most decisions. Under-16s can have property/financial deputies but not personal welfare deputies. At 16, young people are presumed to have capacity under the law, and at 18 become legal adults unless a deputyship is required.
Deprivation of Liberty Safeguards (DoLS)
DoLS applies when someone is supervised and unable to leave a care setting. This does not stop a deputy application; court orders clarify deputy powers.
Parental Responsibility and Decision-Making – Definition, and Involvement
Parental responsibility covers rights and duties relating to a child’s upbringing and generally ends at 18. In England and Wales, those aged 16 and older are presumed able to make decisions. Involve children in relevant decisions wherever possible.
Assessing Deputyship Needs Over 18
Consider deputyship if the individual will lack capacity at 18 or has significant funds. For benefits only, appointeeship may suffice; seek legal advice in complex scenarios.
Understanding Lasting Power of Attorney (LPA)
What is Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) is an official document that lets someone, called the donor, choose trusted individuals to act as their ‘Attorneys’. These ‘Attorneys’ can make decisions for the donor, especially if the donor becomes unable to do so themselves. To set up an LPA, the donor must be at least 18 years old and be mentally capable when signing the document. Mental capacity means being able to make your own decisions. You must have mental capacity to set up an LPA; if you lose it, someone will need to apply to be your deputy. A certificate provider, who witnesses the donor’s signature, is required. The Office of the Public Guardian (OPG) checks LPAs before registration, which typically takes around 10 weeks if all details are correct. Errors or amendments will incur additional fees.
Thereare two main kinds of LPA:
– Health and Welfare LPA: This allows an Attorney to decide on matters related to the donor’s health, personal welfare, and care, including medical treatment and everyday routines.
– Property and Affairs LPA: This type lets an Attorney manage financial issues, such as bank accounts, bill payments, and property affairs. If specified, Attorneys can also take action before the donor loses capacity, like accessing the donor’s bank account.
Both LPAs need to be registered with the Office of the Public Guardian before they can take effect. In a Health and Welfare LPA, the donor can choose whether their Attorney may make decisions about life-sustaining treatments.
Costs Involved
You can set up LPAs online, but a registration fee applies. The Government has made a toolkit available to assist parents and carers in handling financial matters for young people who lack capacity.
If the procedure seems confusing, it’s best to get legal advice. Citizen’s Advice can help you find free legal clinics, and some law firms provide pro-bono (free) assistance.
Removal and Addition of Attorneys
To remove an Attorney, the donor needs a registered LPA, must have more than one Attorney listed, and must still have mental capacity. This process is called a ‘partial deed of revocation’. If you want to add a new Attorney after registration, you cannot simply update the document; you must end the current LPA and create a new one.
Support and Guidance
The individual creating the LPA may need assistance from a supporter, usually an advocate or family member, to help them understand their options, draft the document, arrange for witnesses, and complete the registration. This process takes time and careful attention to make sure the donor fully understands and is not being improperly influenced.
