Deputyship Obligations for Lay and Professional Deputies: The Need to Knows
A deputy is a person appointed and authorised by the Court of Protection to make decisions about either the property and financial affairs or personal welfare of someone who cannot make decisions for themselves as they lack mental capacity; this could be, for example, because they’ve had a serious brain injury or illness, they have dementia, or they have severe learning disabilities. A deputy can be a professional (like a solicitor) or a family member or friend (lay person).
Historically, professional deputies acted under the authority of the Court of Protection under a code of conduct referred to as the Professional Deputy Standards. Standards 1-4 were for deputies acting in respect of property and financial affairs, and Standards 2-5 were for those acting as health and welfare deputies.
Non-professional deputies (referred to as “lay” deputies) did not have any official set of standards to assist them, and acting in the role of deputy has often been confusing as a result. It was felt that the existing standards could be simpler, and there was a gap in that they did not apply to lay deputies.
In February 2023 the Office of the Public Guardian (OPG) published a revised set of standards aimed at helping all court appointed deputies.
The most significant change is that the refreshed standards now apply to lay deputies in addition to professionals. They are not, however, a completely new set of standards. They build upon those already in place and remain aligned with the Mental Capacity Act.
The standards now centre around eight core areas reflecting the duties and responsibilities of all deputies:-
Standard 1: Deputyship obligations
Standard 2: Best interest decision making.
Standard 3: Interactions with “P” (the person for who you are acting)
Standard 4: Financial management
Standard 5: Financial record keeping.
Standard 6: Property management
Standard 7: Decisions related specifically to health and welfare.
Standard 8: Additional obligations
The full set of standards together with guidance can be found at https://www.gov.uk/government/collections/opg-deputy-standards-documents
All deputies, lay, professional and public authority, will now be supervised against the refreshed standards. The OPG will assess the standards by reviewing the annual report and by carrying out assurance visits and case reviews.
The standards and their impact
The standards aim to help ALL deputies to meet their responsibilities and make sure that all decisions made are in P’s best interests. It also includes guidance for professionals in the areas in which members of staff delegated with deputyship responsibilities should have appropriate knowledge and expertise.
The refreshed standards and guidance can be used as a checklist to ensure compliance in all key areas and to demonstrate that as a professional deputy, you and your teams are aware of the duties and responsibilities in acting in this important role.
Whilst the standard applies to all deputies appointed, the OPG still expects professional deputies to have a higher level of technical knowledge and expertise than lay deputies. The consequences of failing to adhere to the standards are high, and the OPG will consider whether the professional deputy should be discharged from their duties.
Lay deputies should be made aware of the standards when being appointed; it therefore follows that professionals appointing lay deputies to the role must ensure they discuss these obligations with any proposed applicant, so that they can consider fully their responsibilities before applying.
Summary
Both professional and lay deputies now have 8 standards they must meet when acting as a deputy. Not only do they have a core obligation to act in the best interests of the person for whom they are acting, but they must also ensure that they keep detailed records, ensuring financial transparency. They must also adhere to the principles of the Mental Capacity Act 2005.
Professional deputies typically have more extensive responsibilities, and the expectations of the OPG reflect this. Lay deputies often focus on more personal aspects like managing finances and benefits. No matter who is appointed, a working knowledge of the standards is essential to ensure a deputy is making decisions in a manner that meets the needs of P.