Deputyship for people living with dementia
Find out what it means to be a deputy for a person living with dementia in England or Wales, including who can be a deputy and what it involves.
- What is deputyship?
- Types of deputyship
- Why might someone need a deputy?
- Who can be a deputy?
- What does a deputy do?
- Limits to what a deputy can do
What is deputyship?
Deputyship is a way that someone becomes legally allowed to make certain decisions on another person’s behalf, if:
- the person no longer has the mental capacity to make those decisions for themself and
- the person has not made an LPA or EPA, which is still valid.
Deputies are appointed by the Court of Protection. This means that you must apply to this court if you want to become a deputy. The court will decide if you are suitable based on your application and the information that you provide.
Deputyships are only used in England and Wales. Read more about Controllership, which is used in Northern Ireland.
How to apply to become a deputy
Find out about the deputyship application process and what happens after you become a deputy.
Property and affairs deputyship
A property and affairs deputyship is the most common type. It is used to make decisions about a person’s property and financial affairs, if they can no longer do this for themself. This might include:
- deciding on practical daily tasks, like paying the person’s bills or applying for benefits on their behalf
- more complex decisions, such as choosing where to invest the person’s savings or how much to spend on their care.
If the person doesn’t have any property or savings and their only income is from benefits, they do not need a deputy. This is because their benefits can be managed by someone appointed by the Department for Work and Pensions (DWP) – this person is known as an ‘appointee’. For more information see the government website.
Personal welfare deputyship
A personal welfare deputyship can be used to make decisions about a person’s care and medical treatment, if they can no longer do this themself. These decisions might include whether the person moves into residential care or whether they should have a particular operation.
Personal welfare deputies are only rarely appointed. Examples might include situations where:
- there is a history of disagreements within the family
- the person is at high risk of abuse
- a series of decisions needs to be made over time – for example, decisions about treatment for an underlying health condition.
When deciding whether to appoint a personal welfare deputy, the Court of Protection will look at the circumstances and consider what’s in the person’s best interests.
Most often, personal welfare deputyships are not needed. This is because care and treatment decisions can usually be made on a case-by-case basis by the professionals providing the care. These professionals can use their skills and knowledge of the person to make these decisions in the person’s best interests.
When this happens, the professionals should involve those who are close to the person in any decision-making. They should also involve the person with dementia as much as possible and take account of their wishes and feelings.
If you disagree with the professionals about what is in the person’s best interests, you can ask the court to make the decision or to appoint a personal welfare deputy to make the decision.
Why would a person with dementia need a deputy?
As dementia progresses, a person may lose their ability – known as ‘mental capacity’ – to make some decisions for themselves.
For example, they may no longer be able to make decisions about:
- needing more care
- where to live
- what medical treatment to have
- paying bills.
In these cases, someone else can make these decisions for the person, as long as they have the legal status to do so.
Some people with dementia will already have planned ahead for when they cannot make certain decisions. They may have made:
- an advance decision to refuse a particular medical treatment
- an advance statement setting out their wishes and preferences for the future
- a will (or updated their existing will following their diagnosis).
They may also have put a Lasting power of attorney (LPA) or an Enduring power of attorney (EPA) in place. These are legal documents that allow a person with dementia to choose who they would like to make certain decisions for them in the future, if they cannot make these decisions for themself.
What is the difference between deputyship and LPA?
Both deputyship and LPAs allow someone to make certain decisions on behalf of a person who can no longer make those decisions. However, there are some key differences.
If the person you care for still has capacity to grant an LPA, an LPA is probably a better option than deputyship for the following reasons:
- An LPA allows the person to choose for themself who they want to make decisions, whereas deputies are decided by the Court of Protection. This means the court could appoint a professional who doesn’t know the person.
- An LPA can be more reassuring for the person with dementia because it can give them a feeling of control at a time when they might be worried about the future.
- LPAs are cheaper to set up than deputyships.
- A deputyship can take longer to set up than an LPA. This can cause problems for families in the meantime, for example if the person has bills that need to be paid.
- Personal welfare deputyships are rare, whereas health and welfare LPAs are much more common and are easier to set up.
However, if the person with dementia has already lost the mental capacity to make an LPA, it will be too late for them to set one up. Deputyship may be the only option.
While an LPA has advantages not everyone wants to make one. Some people also like the extra supervision that goes with deputyship.
A deputyship can still allow you to make the best decisions you can for the person. If it is too late for them to set up an LPA, try to focus on what you can do for them and think about applying for a deputyship if you can.
If the person with dementia no longer has mental capacity to put an LPA or EPA in place, and you want to make certain decisions on the person’s behalf (because they can no longer make those decisions for themself), you will need to apply to become their deputy.
Who can be a deputy?
A deputy is usually a family member or friend of the person who can no longer make certain decisions. If this isn’t possible, a professional, such as a solicitor or an accountant, can act as the person’s deputy.
Family members and friends
In order to become a deputy, you must:
- be at least 18 years old
- agree to being a deputy
- be approved as suitable by the Court of Protection.
Being a deputy can be complicated and time-consuming. For a property and affairs deputyship, you need to be organised and keep good records. This may be particularly challenging if the person’s finances are complex.
Because of this, you should think carefully about being a deputy before taking on the role. It could be helpful to get some advice about it first. If you decide to take on the role, you can get support from the Office of the Public Guardian (OPG).
If a relative or friend can’t take on the role, you could ask a professional to apply to become the person’s deputy, or the court may choose someone. Solicitors for the Elderly can help you to find a lawyer near you.
A deputy could also be a representative from the person’s local authority. This might happen if they are involved with the person’s care and there is no family member or friend who can, and wants to, take on the role.
Do note, however, that professional and local authority deputies will charge for their time. Their fees are normally paid from the finances of the person with dementia. The court will monitor this and will only approve the cost if it is reasonable.
Can a person with dementia have more than one deputy?
It is possible for a person to have two or more deputies. You may find deputyship easier if you have another deputy to make decisions with. If there are two or more deputies, they can make decisions either:
- together (‘joint deputyship’) – this means that all the deputies have to agree on the decision
- separately or together (‘jointly and severally’) – this means that deputies can make decisions on their own or with other deputies.
If you are not sure which would be best, you can get advice from a solicitor or speak to the OPG.
What does a deputy have to do?
If you are thinking of becoming a deputy and making decisions on behalf of a person with dementia, it is important to understand the duties of this role. You will have to:
- act in the person’s best interests – this includes thinking about the person’s past and present wishes and feelings
- make decisions carefully and with as much knowledge as possible – this may involve talking to the person, to people who know them or to professional experts
- not take advantage of the person with dementia – for example, using something they own for yourself or for your own profit
- not give your duties to someone else, unless your deputyship says you can – this means that only you can make the final decision on behalf of the person. However, you can talk to other people about it and get advice
- act in good faith – this means acting with honesty and integrity
- respect the person’s confidentiality – this means not sharing details of the person’s finances, property and health conditions, unless you need to in order to act in their best interests
- follow the instructions of the Court of Protection.
If you are a deputy for property and affairs, you also have a duty to:
- keep financial accounts
- keep the person’s money and property separate from your own – for example, by using separate bank accounts.
The OPG can provide support, guidance and information once you are appointed as deputy.
Supporting the person to make decisions
As a deputy, you should consider the person’s mental capacity every time a decision needs to be made. This is important as the person’s mental capacity can change. They may be able to make a certain decision at one time but not at another.
Equally, if a person is unable to make a certain decision, they may still be able to make a different type of decision at this time. You should not assume that the person is unable to make all decisions at all times.
For every decision you need to make on behalf of the person, you should first do what you can to support them to make the decision for themself. For example, you could try presenting the information that is needed to make the decision in a different way, like using pictures instead of words.
When you are making decisions on behalf of the person, you should still involve them as much as possible. If you can, explain to the person what is happening and listen to what they say.
Managing the person's money
If you are a deputy for property and affairs, you are likely to need to access the person’s bank account as part of your role – for example, to pay their bills.
The way you do this will be different depending on the bank the person uses. Normally, the bank will note on the person’s existing account that you are their deputy. You should then be given a bank card and be allowed to sign cheques for the person. This will enable you to make payments out of the person’s bank account on their behalf.
Providing a deputy annual report
As a deputy, you will have to provide a deputyship report to the Court of Protection every year. This gives the court information about the decisions that you have made on behalf of the person with dementia.
If you are a personal welfare deputy, your report will include information about any medical treatment the person has had in that year and their care arrangements.
If you are a deputy for property and affairs, your report will need to provide information about the person’s financial transactions in the year. This will include:
- any gifts made
- any property the person has bought or sold
- the cost of their care arrangements.
It should also provide financial accounts for the court to approve. You may be asked to provide evidence, such as bank statements.
The Office of the Public Guardian (OPG) will offer you guidance on how to do this and can provide copies of the forms that you will need to complete. You can use the OPG's online reporting service instead of completing paper forms. This can help with recordkeeping throughout the year. If you have any queries, you can contact the OPG for support.
Are there limits to what a deputy can do?
A deputy’s ability to make decisions on behalf of the person should be as limited as is reasonably possible. This means that, if you are a deputy, you should only have the decision-making ability that you need to have and no more than this.
If you are appointed as deputy, the deputyship order will explain the decisions that you can and can’t make in your role.
There are also some limits on what a deputy can do. A deputy cannot:
- make a decision for the person if the person can make the
- decision themself
- restrain the person, except in very particular circumstances to prevent
- them from harm
- make a decision that goes against a decision made under any existing LPA
- refuse life-sustaining treatment for a person who lacks capacity to consent to it
- make gifts, except in very limited circumstances.
Every deputyship order is different and it may contain further limits on the deputy’s abilities. For example, the court may place a limit on how much can be spent in a single transaction, or a cap on how much can be spent over a certain period of time.
Can a deputy make decisions about property?
Some property and financial affairs deputyships allow the deputy to make decisions about the person’s property, but some do not. You should think about this when you apply. If you think you will need to sell the person’s house (for example, to pay for care fees), you should ask for that ability to be included in your deputyship when you apply.
If you already have a deputyship order, you should always check the wording of the order before making any decision about the person’s property. If you are still unsure whether you’re allowed to make the decision, check this with the Court of Protection.
There are certain additional rules if you jointly own the property with the person. You should get legal advice if this is the case.
Can a deputy give gifts?
It may be possible for a deputy to make limited gifts on the person’s behalf, but this will depend on the details of the deputyship order. Check the order first before giving any gifts.
Normally the order will allow gifts to be made to:
- family members or friends of the person on ‘customary occasions’, such as birthdays, weddings or civil partnerships, anniversaries or religious festivals
- charities that the person has given to previously.
Before giving any gifts, you should consider the person’s finances and whether giving the gift would affect their ability to meet their needs both now and in the future. Gifts should always be well within what the person can comfortably afford.
If you are able to make a gift on the person’s behalf, involve them as much as possible in the decision. Think about the gifts the person has given in the past.
It’s important to note that under the law, a ‘gift’ can include a wide range of things that you may not think of as gifts. As well as presents and donations, gifts can include:
- selling the person’s property at less than market value (the amount by which the sale price falls short of market value counts as a gift)
- living or allowing someone else to live rent-free or at a cheap rate in the property (the amount by which the rent price falls short of market value counts as a gift)
- allowing someone an interest-free loan from the person’s money (the amount that hasn’t been charged in interest counts as a gift)
- paying someone’s school or university fees.
This means that the restrictions that apply to giving gifts will apply to these situations too. Unless the deputyship order specifically authorises you to do any of these things, you will need approval from the Court of Protection before you can do any of them on the person’s behalf.
If you are unsure whether you can make a gift, you can ask the Office of the Public Guardian for guidance. If you want to make a gift that is not allowed by your deputyship order, of if you are concerned that its value may not be reasonable, the Court of Protection will need to approve it.
Remember to keep a record of any gifts you make. You will need to include these in the annual accounts you submit to the Court of Protection.
Can a deputy claim expenses?
When acting as someone’s deputy, you can claim for certain expenses, as long as they are reasonable. People often don’t claim back expenses for a variety of reasons, but no one should be left out of pocket for acting as a deputy. If you are acting on behalf of a friend or relative, they probably wouldn’t want you to pay these expenses yourself.
You can only claim for certain expenses when they are for the purposes of performing your role as a deputy. This could include:
- postage costs
- car parking tickets
- travel expenses that you’ve had to pay in order to carry out your role as a deputy.
You cannot charge for travel costs for a general visit.
It’s worth knowing that you can’t charge for the time that you spend carrying out your deputy role. Only professional deputies, such as solicitors or accountants, can do that.
How to apply to become a deputy for a person with dementia
Interested in becoming a deputy?
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