Becoming a deputy for a person with dementia

There may come a time when a person with dementia cannot make significant decisions for themselves. This is more likely during the moderate to advanced stages of dementia. In this situation, someone else may need to make decisions on their behalf. It is usually best for people with dementia to choose someone, while they can, using what is known as a Lasting Power of Attorney. If they haven't done this, then someone can take on this decision-making role by becoming a deputy. This factsheet outlines the responsibilities of a deputy, how to apply to become one, and factors to consider before deciding to do so.

The information in this factsheet is for people living in England and Wales. For information about the laws relating to Northern Ireland, see factsheet NI472, Enduring Power of Attorney and Controllership.

As dementia progresses, people become less able to make significant decisions for themselves, such as where they will live, or about medical treatment. They may also become unable to manage their personal affairs. In these cases, someone can take over the responsibility for them, as long as they have the legal power to do so.

Some people with dementia will already have plans in place for a time in the future when they cannot make their own decisions. They may have put a Lasting Power of Attorney or Enduring Power of Attorney in place. For further information see factsheet 472, Lasting Power of Attorney. However, if the person with dementia has not previously done this, and a carer feels they need to make decisions on their behalf, they will need to apply to the Court of Protection to become their deputy.

The application is only the beginning of a longer process: if you do become someone's deputy there are continuing tasks and responsibilities that you will be expected to carry out in the future.

The Mental Capacity Act 2005 (MCA) makes clear who can make decisions, in which situations, and how they should go about it. For more information see factsheet 460, Mental Capacity Act 2005.

Deputies

A deputy is a person appointed by the Court of Protection to manage the affairs of someone who lacks the mental capacity to manage their own affairs. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances could be a professional such as a solicitor or accountant or another professional appointed by the court. Professional deputies will charge for their time, and this is paid for by the person with dementia (or their estate).

To become a deputy you must be at least 18 years of age and willing to be a deputy. A deputy must consent to their appointment.

Paid care workers should not agree to act as a deputy because of the possible conflict of interest. In exceptional circumstances (for example, if the care worker is the only close relative of the person who lacks capacity), this may be unavoidable.

There are two different types of deputyship: property and affairs, and personal welfare.

Types of deputyship

Property and affairs deputyship

A property and affairs deputyship is the most common form of deputyship. Someone must apply to become a deputy if they feel they need to manage someone's financial affairs. This usually only happens if the person who lacks capacity to make decisions about property and affairs has not made a Lasting Power of Attorney or Enduring Power of Attorney.

Usually, the court will not appoint a deputy if the person has already appointed an attorney to manage their financial affairs. Similarly, when a person has no property or savings and their only income is social security benefits, there will usually be no need for a deputy to be appointed. This is because the benefits can be managed by an appointee, appointed by the Department for Work and Pensions. For more information see factsheet 413, Benefits.

If you make an application to become a property and affairs deputy, you will need to sign a declaration. The declaration will outline your circumstances and include details of the tasks and duties you as a deputy must carry out. You must be able to assure the court that you have the skills, knowledge and commitment to carry them out. You must also assure them that there is nothing that might make your appointment inappropriate, eg if you have severe financial and/or health problems yourself, or are bankrupt.

Personal welfare deputyship

A personal welfare deputyship is rare. If a person lacks capacity to make decisions about their care and treatment and has not appointed an attorney, someone must apply to become a deputy if they feel they need to manage that person's personal affairs. They are only appointed in the more extreme circumstances where no resolution can be reached in the best interests of the person. The Court of Protection does not usually appoint deputies to make continuing decisions about someone's health and welfare unless regular treatment or supervision is needed, for example with a younger person.

These decisions can usually be made in the person's best interests by those providing care and/or treatment. If there is a disagreement as to what is in the person's best interests, or the decision relates to specified serious medical treatment, it may be necessary to ask the court to intervene.

How to apply

To apply to become a deputy, you will need to submit an application to the Court of Protection. The application process involves providing the court with detailed information regarding the circumstances and finances of the person with dementia.

To apply to be appointed as deputy, you will need to complete the following forms:

  • main application form (COP1)
  • Annex A: supporting information for property and affairs (COP1A)
  • assessment of capacity (COP3)
  • deputy's declaration (COP4).

These and further guidance can be obtained from the Court of Protection (see 'Other useful organisations') and found on their website. They may also be able to assist you to complete your application and forms. Alternatively, you can instruct a solicitor to make an application on your behalf, with fees payable by you. You will need the court's permission to pay fees from the funds of the person with dementia. This is usually fixed or limited. It is important that you discuss this with the solicitor at the outset.

The Court of Protection then assesses the suitability of each deputy from the information provided on the application forms.

The application process can be quite lengthy. For standard applications, the court aims to notify you of their decision within 16 weeks of receiving it. However, in more complex cases, or where the court needs to clarify information, it can take a lot longer than this.

It is important to note that if the application is successful, a copy will be kept on record and may be used in the future to provide guidance on certain decisions. For example, if a deputy considers making gifts on the person's behalf, they can refer to the application form and the specific section on gifts to see what the person has given in the past.

A court fee will need to be paid. This money can come from the estate of the person with dementia. If you pay this up front you can claim it back from their finances once you have been made their deputy. For more information about the current fees, contact the Court of Protection or look at their website.

Duties of a deputy

If you are thinking of becoming a deputy for a person with dementia, it is important to consider the continuing responsibilities involved. There are many tasks and responsibilities that you will be taking on, and these are outlined below. Support, guidance and information are available for deputies from the Office of the Public Guardian (see 'Support from the Office of the Public Guardian' below for more details). When acting as a deputy and making decisions on behalf of another person, you will have specific responsibilities. These include a duty to:

  • act with due care and skill (duty of care)
  • not take advantage of the situation of the person with dementia (fiduciary duty)
  • protect the person against liability to third parties caused by the deputy's negligence
  • not delegate your duties unless authorised to do so
  • act in good faith
  • respect the person's confidentiality
  • comply with the directions of the Court of Protection.

If you are a deputy for property and affairs, you also have a duty to:

  • keep accounts
  • keep the person's money and property separate from your own, for example by using separate bank accounts.

Who to tell

As a deputy, you must instruct various outside organisations that you are now acting on the person's behalf. You will need to show an original sealed copy of the Court order. Examples of organisations that you must inform include:

  • the Department for Work and Pensions for pension and/or benefit entitlement
  • the local authority for housing benefit or assistance with fees
  • banks or building societies
  • accountant
  • payer of any private pension(s)
  • solicitor who holds the person's will and/or property deeds
  • residential or nursing home where the person resides.

It is also a good idea to inform other people involved in the person's care, such as carers, and also their relatives and friends.

Security bonds

Often the deputy's first duty is to arrange a security bond with an insurer. The court requires that all deputies for property and financial affairs do this. This security bond is a type of insurance policy designed to financially protect the person with dementia in the unlikely event that the deputy were to mismanage their finances. The security bond is determined by the amount of funds that the deputy will have control of, including any non-cash assets such as property.

Guidance on arranging a security bond is usually sent out once the court has made the order, and they will require you to set up the bond before it sends the order to you. You may pay the bond from money you hold for the person, or pay from your own money and be reimbursed when you have access to the bank account. It is important to note that you will have to pay a yearly fee or premium for the bond, which can be paid from the money of the person with dementia. This obligation will continue for as long as a deputy is in place.

Limits to a deputy's powers

The authority and powers granted to a deputy should be as limited in extent and duration as is reasonably possible. There are specific restrictions on a deputy's powers. A deputy has no authority to:

The court can cancel a deputy's appointment at any time if it decides the appointment is no longer in the best interests of the person with dementia who lacks capacity.

Every deputy order (the paper that states a deputy's powers) is different, and may contain further clauses and limits to specific powers. Examples include a limit on how much can be spent in a single transaction, or a cap on how much can be spent in a certain time period.

Supervision

The role of the Office of the Public Guardian (OPG) is to protect anyone who lacks the mental capacity to make decisions for themselves. The Court of Protection and the OPG are essentially the same institution but with defined functions: the Court makes the decisions and the OPG attends to all the administration.

The OPG supervises deputies, provides evidence to the Court and offers information to the public. They have a responsibility to check that you are doing everything you should be doing. This involves making sure that you comply with the terms of the Court order, and that the decisions you make on behalf of the person are in accordance with the Mental Capacity Act and in the person's best interests.

There are two different levels of supervision:
  • General - all new deputies are placed under general supervision in the first year because they may need more support and guidance. If there are concerns about a deputy, they will also be placed under general supervision
  • Minimal - if the assets of the person with dementia are below £21,000 and there are no concerns about the deputy, they will be placed under minimal supervision.

For further information on supervision levels, see the OPG website, or contact them (see 'Other useful organisations').

Supervision fees

A supervision fee must be paid annually. The amount will depend upon the type of supervision (see above): the more supervision required the higher the fee. For current rates see the OPG website, or contact them (see 'Other useful organisations').

Support from the Office of the Public Guardian

As well as protecting the person with dementia, the OPG is also there to support people in their role as a deputy. There are numerous ways that the OPG will do this, and this is all included in the annual supervision fee. The OPG services include:

  • Phone call within the first few months - The OPG aims to contact all new deputies six weeks after their appointment. This is your chance to ask them about any concerns that you have, or any problems you are experiencing, for example with banks. Remember they are there to help, so do ask any questions you might have.
  • Visits - If you feel it would be helpful, someone from the OPG can visit to help with your role in being a deputy. This is about helping and supporting you in your role, and deputies generally find these visits very useful.
  • Case worker - Those deputies who are in the higher level of supervision (types 2A and 1 - see 'Supervision' above for details) will have a specific case worker. You can contact your own case worker as needed to ask any questions that you may have, and they are there to help you in your role as a deputy.
  • Contact centre - The OPG has a contact centre that all deputies - especially those who don't have a case worker - can contact to ask questions.

To be sure that you are acting within the powers you are given, it can be helpful to ask the OPG any questions you have, or run any queries by them. Often a quick phone call can resolve any issues that you may have, and can be a good way of getting support if you are experiencing problems.

Deputy annual report

As a deputy you will have to provide an annual deputyship report to the court. This gives the court information about the decisions that you have made on behalf of the person with dementia. It should also provide summary accounts for the court to approve. You must detail the financial transactions of the previous year and provide further information concerning the person's affairs. You must also provide evidence, such as bank statements.

The OPG will offer you guidance on how to do this and copies of the forms that you will need to complete. If you have any queries, contact them for support.

Emergency applications

If there is a clear risk that someone may suffer serious loss or harm, then you can make an emergency application to the court to become a deputy. This is only to be used if the court is required to make a decision within 24 hours.

Examples include:

  • urgent medical treatment
  • preventing someone being removed from the place where they live
  • to execute a statutory will or important financial transaction where the person's life expectancy is very short.

To make your emergency application, you should contact the court on 0300 456 4600 and ask to speak to an urgent business officer, who will discuss the case with you and make arrangements to receive your application and present it to a judge.

Frequently asked questions

As a deputy, can I give gifts on behalf of my relative?

Generally it is possible for a deputy to make gifts on the person's behalf, but this will depend upon the deputy order, so it's always best to check the order first. Gifts are limited and various factors can affect the limit:

  • The finances of the person with dementia will be taken into account. A deputy would not be able to make a gift that would adversely affect the person's finances. For example, if the person had £50,000 in savings and this was being used to pay for their care, a gift worth £30,000 would hugely affect their savings and ability to pay for their care.
  • Customary actions by the person with dementia in the past need to be considered. For example, if they have always given family members gifts for their birthdays, celebrations or other holidays such as Christmas or Hanukah, then generally a deputy can continue to do this for the person.
  • If the person with dementia still has capacity to decide for themselves who they wish to give gifts to, their wishes should be followed by a deputy. This is unless the gift would jeopardise the person's finances, for example giving so much away they are not leaving themselves with enough.
  • Often the court will refer back to the deputy application form - there is a specific section of the form that asks about gifts. This can be completed to show what kinds of gifts the person with dementia has previously given. This can provide guidance for the deputy and court when deciding about giving gifts.

If a deputy is unsure whether they can make a gift, or they are looking at making a large gift, they can refer to the OPG for guidance. In some circumstances, especially if involving a large gift, the Court of Protection may need to make the final decision.

When acting as a deputy can I claim for any out-of-pocket expenses?

Yes, when acting as someone's deputy you can claim for certain expenses. 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 relative they probably wouldn't want you to pay these expenses yourself.

You can only claim for certain expenses, for example postage costs, car parking tickets and travel expenses occurred through deputy business. You cannot charge for travel costs for a general family visit, for example. You can only claim expenses when they are for the purposes of performing your role as a deputy. Non-professional deputies, such as relatives or friends, cannot charge for their time.

I heard that if you are someone's deputy you cannot live in their house, even if you pay rent. Is this true?

As a deputy you cannot act in a way that can cause a conflict of interests, so living in the person's house, even if you are paying rent, can cause a conflict between your personal role and your role as a deputy. However, this does not mean that you definitely cannot live in the same house, or live in their house and pay rent. But to be able to do this you will need to get the permission of the Court. The Office of the Public Guardian can provide you with further guidance and information.

Other useful organisations

Court of Protection

PO Box 70185
First Avenue House
42-49 High Holborn
London WC1A 9JA

T 0300 456 4600
E courtofprotectionenquiries@hmcts.gsi.gov.uk
W www.gov.uk/apply-to-the-court-of-protection

The Court of Protection makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.

Office of the Public Guardian

PO Box 16185
Birmingham B2 2WH

T 0300 456 0300 (customer services, 9am-5pm weekdays)
E customerservices@publicguardian.gsi.gov.uk
W www.gov.uk/browse/births-deaths-marriages/lasting-power-attorney

The OPG supervises deputies, and are able to provide deputies with guidance and support.

Solicitors for the Elderly

Solicitors for the Elderly Ltd
Room 17, Conbar House
Mead Lane
Hertford SG13 7AP

T 0844 5676 173
E admin@solicitorsfortheelderly.com

Solicitors for the Elderly is an independent, national organisation of lawyers, such as solicitors, barristers, and legal executives who provide specialist legal advice for older and vulnerable people, their families and carers.

Factsheet 530

Last reviewed: October 2013
Last updated: September 2015
Next review due: October 2015

Reviewed by: Natalie Melling, Approved Mental Health Professional (Mental Health Act), Independent Social Worker, Best Interests Assessor (Mental Capacity Act); Irene Chenery, Partner, Chenery Maher Solicitors, member of Solicitors for the Elderly

This factsheet has also been reviewed by people affected by dementia.

A list of sources is available on request.

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