Three generations of women, comforting mother in the middle. Concept for deputies

The Court of Protection appoints Deputies when someone is assessed as lacking mental capacity to manage their own affairs. This article looks at the rules for Deputies and what to do if you think they are abusing their position.

Deputies can be appointed by the Court of Protection (COP) to manage Property and Finance, and/or Health and Welfare. Regardless of which type of Deputy they are, there are rules that govern the way in which they must act. These are there to ensure that the person deemed as lacking capacity is well protected.

Britney Spears, who was back in the headlines recently regarding the ending of her Conservatorship, serves as an important reminder that not all guardians act as they should. She argued that the Conservatorship (which is very similar in purpose to the English and Welsh Deputyship system) was abusive and not in her best interests.

You can read more about US Conservatorship and the similarities with Deputyship in my previous article here. This article focusses on how Deputies should act, what to do if you think they are not acting correctly, and the consequences.

What duties do Deputies have?

There are a number of duties and rules for Deputyships that are in place to safeguard against abuse.

The first consideration should be the Mental Capacity Act 2005 (“MCA 2005”). This sets out five principles about mental capacity that should remain in the forefront of a Deputy’s mind when considering any action about the person:

  1. Presumption of capacity: the person should be presumed to be able to make the decision for themselves, unless you can prove otherwise;
  2. The person should be supported to make their own decisions: the Deputy should give the person all the help they can to make a decision for themselves before deciding that they can’t make that decision;
  3. An unwise decision doesn’t mean they don’t have capacity: the Deputy should remember that everyone makes unwise decisions from time to time, but this does not necessarily equate to a lack of capacity;
  4. Best interests: if it is established that the person doesn’t have capacity to make the specific decision, any action taken or decision made for them should always be made in their best interests; and
  5. Least restrictive option: anything done on behalf of the person should be done in a way that restricts their basic rights as little as possible.

In addition to the considerations under MCA 2005, a Deputy also has the duty to:

  • Act only within their scope of powers set by the Court;
  • Act with due care, skill and diligence;
  • Not to delegate their powers unless permitted by the Court;
  • Ensure that there are no conflicts of interests or gain any personal benefit from their position;
  • Act with honest and integrity; and
  • Keep the persons information confidential unless there is a genuine reason that means you should disclose it.

There are also a number of other specific duties depending on whether the Deputyship is in regard to Property and Finances of Health and Welfare.

The Court of Protection and the Office of the Public Guardian (“OPG”) monitor and guide deputies in their role to ensure that the person is and remains protected. However, there are sadly instances where people abuse their position and it is important to know what you can do if you have concerns.

How to report your concerns and what happens next

If you are concerned about somebody abusing their role of Deputy, you should firstly contact the Office of the Public Guardian (OPG). You can do this by yourself or you can instruct a solicitor to help you.

The OPG has an anonymous reporting service whereby a person can report any concerns that they may have about someone acting under a Deputyship (or Power of Attorney). The OPG will then conduct an investigation.

Depending on the outcome of the investigation, the OPG will then take the necessary course of action. This can include:

  • Doing nothing: the OPG may find that there is no reason to be concerned;
  • Speaking with the Deputy to establish more information and offer guidance if they are struggling;
  • Involving other authorities, such as the Police or Local Authority; and
  • Making an application to the Court of Protection to have the Deputy removed or replaced.

An application to remove or replace a Deputy can be lengthy and stressful for all parties involved. It is therefore vital you have the best support around you, including specialist lawyers to assist you through the process.

Please contact us if you would like specialist legal advice relating to concerns about a Deputy or Attorney.