You’ve gone through the process of making an application, you’ve applied to be a deputy, and you’ve got the order, so what now?
As part of our series on deputyships, today we’re going to look at some best practices for acting as a deputy. By the end of this short article, you’ll have some of the tools you need to carry out the role in the best interest of the protected party and in accordance with the law.
As we’ve mentioned before, becoming a deputy is a role that comes with roles and responsibilities, while this list acts as a general guide, it is not exhaustive as such matters are often personal to your circumstances. It is important however that you take them seriously.
Deputyship best practice – first things first
The first thing you should do is check the order and make sure all the details you submitted are correct.
You should then read the document line by line to check whether there needs to be any ‘security’ paid and check what the order allows you to do. For example, does the order allow you to deal with everything including the sale of the property or does it only refer to accessing accounts?
Orders are written in a way where it will try to clearly state everything you’re allowed to manage on behalf of the protected party. If you’re looking to take a specific action e.g. sell/buy a property and the order is silent, you probably can’t do it.
Such orders also come with covering letters which may request that you notify the protected party (i.e. the person who the deputyship is for) that the order has gone through.
Fees and the Office of the Public Guardian (OPG)
In addition, the OPG requires you to pay a fee to them upon your appointment and they will request this from you in writing. They will also charge annual supervision fees. This is currently £320. However, there are exemptions and remissions depending on the assets and income held by the protected party.
Establish the protected party’s assets and holdings
You should then use the order to determine what exactly the protected party owns or holds if you don’t already. The aim of this is to ensure that you have all financial information relating to the individual so that you can properly manage their financial affairs moving forward. You may include making contact with landlords (where appropriate), mortgage companies, banks, any independent financial institutions, HMRC, NS & I, pension companies, employers, paid medical professionals, social services, the DWP and all utility companies to name a few.
You should also:
- Register the order with all of these third parties who may hold accounts or products on behalf of the protected party, where appropriate to do so
- Open up a separate account for you to manage their funds on their behalf, you should not be contributing to their account and reimbursing yourself if you can help it as ‘mixing funds’ is frowned upon.
- Consider whether you should combine the person’s assets (e.g. to make it easier to manage whilst considering how this may impact financial protection for the protected party)
- Set up an income and expenditure account so that you can carefully and correctly monitor what the protected party receives and spends. You can then consider whether there could be a time when they may run out of funds e.g. due to care fees. In this eventuality, you should consider applying for benefits on their behalf
- Look at whether they should be receiving benefits of any kind and maintain contact with the DWP and/or the Job Centre in respect of this.
Review and understand the Mental Capacity Act 2005
As a deputy, your actions are governed by the Mental Capacity Act 2005 (MCA), an important piece of legislation that ensures individuals who lack capacity are protected while also preserving their rights and freedoms.
To ensure you’re fulfilling your role as deputy to the highest ethical and legal standards, you should review the five key principles of the act to help guide your decisions.
These include:
- Presumption of capacity: The MCA starts with the assumption that every adult has the capacity to make their own decisions unless it’s demonstrated that they cannot. As a deputy, this means you must not assume that the protected party lacks capacity unless it has been clearly assessed and determined. This is on every occasion you make a decision.
- Individuals being supported to make their own decisions: You must ensure the protected party is involved in decision-making as much as possible. This could mean offering additional support, such as simplifying information or providing more time to help them understand decisions about their own welfare or finances.
- Unwise decisions: It’s important to remember that just because someone makes a decision that may seem unwise, it doesn’t automatically mean they lack capacity. As a deputy, your role isn’t to prevent unwise decisions but to determine if the person truly has the capacity to make those choices.
- Best interests: Every decision you make on behalf of the protected party must be made in their best interests. You must consider their past and present wishes, feelings, values, and beliefs, as well as involve family members or close friends where appropriate, to ensure their well-being is at the forefront of any action you take.
- Less restrictive option: As a deputy, you must always aim to make decisions in the least restrictive way possible. This means considering all options and ensuring that any steps you take do not unnecessarily limit the protected party’s rights or freedoms, while still acting in their best interests.
If you abide by these principles, your actions will by their nature align with the law and the best interests of the person you’re supporting.
Considering security bonds and insurance
When you’re appointed as a deputy, the court may require you to take out a security bond. This is essentially an insurance policy designed to protect the financial assets of the protected party. The bond acts as a safeguard, ensuring that if you, the deputy, mismanage the protected party’s affairs or mishandle their funds, the bond can be used to compensate for any financial losses suffered. The amount of the bond is usually set based on the value of the protected party’s estate, and the deputy is responsible for maintaining it throughout their appointment.
In addition to a security bond, as deputy, you should also consider other forms of insurance or legal protection. This might be more relevant if you’re managing complex or significant financial matters. For example, professional indemnity insurance can offer protection against potential legal disputes or claims of mismanagement. Also, you might face legal challenges if family members or other interested parties dispute decisions, particularly those involving large financial transactions or property sales.
Having the right insurance in place will provide peace of mind and a safeguard against these potential risks.
Consider enlisting professional support
While the responsibilities of a deputy seem straightforward, there are times when the complexities of the role—particularly in areas like the sale of property, managing investments, or dealing with large sums of money—can become overwhelming and riskier from a legal standpoint.
It’s important to remember that you don’t have to manage everything alone. Seeking professional financial or legal advice is not only wise but can be essential in ensuring you act lawfully and in the best interests of the protected party. Financial advisors can help you navigate investment options or strategies to preserve or grow the protected party’s assets, while solicitors can provide guidance on property sales, legal disputes, or understanding the full scope of your powers as a deputy.
In some cases, the law may even require you to obtain professional advice before taking certain actions, such as selling a home or entering into complex contracts on behalf of the protected party. Consulting with professionals ensures that your decisions are well-informed, compliant with the laws of England & Wales, and aligned with the protected party’s best interests.
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If you’re looking for help applying for a deputyship or require support understanding and carrying out your duties as a deputy, Gorvins’ expert team of wills trusts and probate solicitors are here to help. To get started, call us on 0161 930 5151, email us at Enquiries@gorvins.com or fill in the online form.