Deputies/Powers of Attorney: Making Decisions For Individuals Who Lack Capacity Resources

The information on this page applies to England and Wales.

The information and links to third party resources on this page are provided for training and educational purposes only. Advice from a suitably qualified and experienced lawyer, with the Law Society’s Mental Capacity (Welfare) accreditation should be sought in relation to individual cases.  Preliminary free advice can also be sought from a Law Works Network Clinic.

What is a Deputy?

A deputy is an individual given permission by the Court of Protection to make decisions on behalf of someone else aged 16 years or more, who lacks mental capacity (the ability) to make decisions for themselves.  This might be because the individual has severe learning disabilities; has dementia or has a serious brain injury or illness.

The Court of Protection makes decisions to protect the welfare, property and finances for individuals who lack mental capacity.  It was established by the Mental Capacity Act 2005 (see more about this Act below).  The Court decides whether an individual lacks capacity to make decisions for themselves. The Court also appoints deputies and has other powers to protect individuals who lack capacity.

There are two types of deputy:

Personal Welfare Deputy: This deputy makes decisions about the individual’s medical care and treatment and social care.

The appointment of a Personal Welfare Deputy is usually only made if there is family disagreement about the care an individual should receive, or a decision needs to be made about a specific medical issue. This is because all decisions by professionals, family and others should be made in the persons best interests and best interests are very specific to a particular time, place, question and set of circumstances.

The Court of Protection provides this guidance on the circumstances a personal welfare application should be made.

Property and Financial Affairs Deputy: This deputy manages the individual’s property and finances.  For example, the deputy will manage the individual’s benefits; pay their bills and manage their home and garden.

Who Can Be A Deputy?

Deputies are usually close family members or friends of the individual who lacks capacity.

A property and financial affairs deputy must have the skills needed to manage the individual’s property and financial affairs.

An individual can have two or more deputies appointed by the Court of Protection.  They can be joint deputies meaning they have to all agree on all decisions, or be appointed jointly and severally meaning each deputy can take a decision on their own or with the other deputies.

A deputy must be 18 years old or over.  When applying to become a deputy, the applicant must complete several detailed forms including a form called a Deputy’s Declaration (Form COP4).  On this form the applicant has to provide detailed information about themselves to show the Court of Protection they are a suitable person to be appointed as a deputy.  This includes:

• information about their own employment;
• whether they have ever been convicted of a criminal offence (apart from offences they do not have to declare under the Rehabilitation of Offenders Act 1974);
• information about their personal financial situation, including whether they have any outstanding judgment debts or have ever been declared bankrupt or entered an Individual Voluntary Arrangement (a legal arrangement to pay off debts);
• information about any financial difficulties faced by any business the individual has been involved with as a director or partner.

The applicant also has to give a series of 12 undertakings which include that they will ‘have regard to the Mental Capacity Act 2005 Code of Practice and apply the principles of the Act when making decisions’.  

Where it is not possible for a family member or friend to take on the duties of a deputy the Court of Protection can appoint a specialist deputy from a list of approved law firms and charities. These are called panel deputies.

Deputies Duties

A deputy must comply with the Mental Capacity Act 2005 and its Code of Practice (see under The Law below).

Central to this is acting in the individual’s best interests. This means allowing and assisting the individual to be involved in the decision to the extent they are able to do so and give them all the support possible to enable them to be involved in the decision.

When the individual is unable to make the decision or be involved in the decision, acting in their best interests includes taking into account their known wishes and preferences. This might include, for example, taking into account their known religious or ethical beliefs as well as their every day likes and dislikes.  A decision maker does not have to do what the individual wants or would have wanted if this is not in the individual’s best interests, but the decision maker must carefully consider what the individual wants or would have wanted when making their decision.  The decision maker should also consult widely including seeking where appropriate professional advice and consider the individual’s welfare widely.

A deputy also has a duty to file an annual report with the Office of Public Guardian who has a duty to oversee the care and support provided to everyone who has a deputy appointed by the Court of Protection.

The Court of Protection provide further guidance for deputies.

Mental Capacity Act 2005 & Code

Mental Capacity Act 2005 Code of Practice

Mental Capacity Act 2005 Code of Practice (Easy Read Version)

The Mental Capacity Act 2005 (‘MCA’) is an Act of the UK Parliament which applies in England and Wales. It provides the legal framework for decision making for and with people aged 16 years and over who lack the capacity to make those decisions independently. The Code of Practice provides important statutory guidance as to how the provisions of the Act should be put into practice.

The Mental Capacity (Amendment) Act 2019 aims to reform the process under the MCA for authorising the deprivation of liberty for treatment and care for people who lack capacity to consent to treatment.

Additional Guidance on the Mental Capacity Act and its code are available from:

Court of Protection

Office of the Public Guardian

Department of Health and Social Care

Social Care Wales/Gofal Cymdeithasol Cymru

The Court of Protection Handbook is another useful resource. It is a website written by Alex Ruck Keene, Barrister; Kate Edwards, Associate Solicitor; Professor Anselm Eldergill, Court of Protection District Judge; and Sophie Miles, Barrister. It has a range of useful resources, including links to legislation, forms, practice directions and precedents.

Applying to be a Deputy

An application is made to the Court of Protection on the following forms, when you click on the link you will also find guidance on how to complete the form at the end of each form:

Form COP1 : Application to be a welfare or finance and property deputy

Form COP1a: To be completed in addition when applying to be finance and property deputy

Form COP1b: To be completed in addition when applying to be welfare deputy

Form COP3: Assessment of Capacity

This form has a section which must be completed by a professional who has conducted an assessment of the individual’s capacity. For example, their GP or hospital specialist; their psychiatrist; social worker; occupational therapist; an approved mental health professional or a nurse.

Form COP4 : Deputy’s Declaration

Fees

There is a fee payable to make your application and further fees payable if the application progresses. Two fees are payable when applications are made to appoint both a welfare deputy and a finance and property deputy, even if a single person is to be appointed to fulfil both these roles. Full details are included in the UK Government’s guidance.

It is possible to apply for help with fees using this Form COP 44A.

Guidance

OPG Deputy Standards Applies in England and Wales

New guidance was published by the OPG in February 2023 describing the standards expected of a deputy appointed under the Mental Capacity Act 2005.

The guidance set out what is expected of lay, Public Authority and professional court appointed deputies. Lay deputies are usually family members or close friends of an individual deemed unable to make decisions for themselves.

The standards expected are divided into eight catagories:

• core deputy duties;
• ‘best interest’ decision making;
• interactions with the individual being supported;
• financial management;
• financial record keeping;
• property management;
• health and welfare decisions; and
• additional obligations.

The standards include a deputy having a working knowledge of the Mental Capacity Act.

The mental health charity MIND has also produced this useful guide to the Mental Capacity Act 2005, which includes helpful information about applying to be a deputy.

The Law

When applying to be a deputy you must undertake (promise) the Court of Protection that you will follow the Mental Capacity Act 2005 Code of Practice and the Mental Capacity Act.

The Mental Capacity Act 2005 is an Act of the UK Parliament which applies in England and Wales. It provides the legal framework for decision making for and with people aged 16 years and over who lack the capacity to make those decisions independently. The Code of Practice provides important statutory guidance as to how the provisions of the Act should be put into practice.

Mental Capacity Act 2005 Code of Practice

This is statutory (legally binding) guidance that tells professionals and others, including family members, carers and deputies, how they should act to ensure they are acting in keeping with the requirements of the Mental Capacity Act.

Mental Capacity Act 2005 Code of Practice (Easy Read Version)

A Basic Guide to the Court of Protection (July 2020)

This is a very clear guide to the Court of Protection, which deals with cases arising under the Mental Capacity Act 2005, written by Victoria Alex Ruck Keene (a barrister), Sarah Castle (the Official Solicitor),and Jakki Cowley (an advocate). It explains clearly what to expect and has useful links to further resources, including a helpful glossary where legal terms you may encounter are explained.

Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards are an important part of the Mental Capacity Act. You can read about the law and Liberty Protection Safeguards which are due to be introduced to replace Deprivation of Liberty Safeguards on this AdsFoundation Resources Page.  These safeguards aim to protect those who are unable to consent to their care arrangements.

Power of Attorney

A lasting power of attorney is a legal document made by someone who has the mental capacity to do so, granting one of more individuals the right to help them make decisions at some future point when they lack the capacity to make those decisions without help.

An individual can make or to use the legal jargon grant two types of Power, one dealing with health and welfare and the other dealing with property and financial matters.  The individual can make one or both.  They can also specify the particular decisions they would like the individual to help them make.

The main difference between an LPA and the appointment of a deputy is that a LPA is created by someone whilst they have the mental capacity to do so, a deputy is appointed by the Court who someone who lacks capacity when they have not previously granted a LPA in connection with the decision to be made.

Full guidance on how to apply for a Power of Attorney, including the costs and how to bring an existing Power to an end, as well as the necessary forms are available from the gov.uk website.

We welcome your feedback on this and all our resources, including information of any additional resources we should include or any changes you think we should make to our existing resources. The AdsFoundation is also happy to provide bespoke workshops which can be face-to-face or on-line on issues of health and social care law. Please use the CONTACT US tab above to contact us. Thank you.

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