Acting As A Deputy Or An Attorney
Acting as a Deputy or Attorney for another brings with it duties and responsibilities to bear in mind at all times.
Your primary role is to act in the best interests of the person you are appointed to act for when making decisions. You must take care then not to place yourself in a position of potential conflict with the incapacitated person and their interests.
Acting As A Deputy Or An Attorney
You must also keep in mind the principles of the Mental Capacity Act 2005, the wishes of the person you act for and the Court of Protection’s own Practice Directions and Guidance notes.
The Core Principles Of The Mental Capacity Act Are:
- Presumption of Capacity – The starting point is to assume the person has capacity to make their own decisions;
- Support to make decisions – To help the person to make their own decisions as far as possible using all practicable steps;
- Unwise decisions – All people are free to make their own unwise decisions and this does not automatically mean that they do not have capacity to make the decision in question;
- Best interests – When making a decision on behalf of another, the decision must be made in their best interests;
- Least restrictive option – When making decisions on behalf of another, you should consider the option which is the least restrictive to that person’s rights and freedom.
It is also advisable to protect both your interests and those of the person you act for by keeping receipts and a record of important decisions which are being made and how much involvement your loved one has had in those decisions. (See also Mental Capacity)
Ongoing Management As Deputy
If you decide to apply to act as Deputy yourself, you will be aware that the Office of the Public Guardian requires you to prepare and present a report to them each year to show all income and outgoings for the person you are appointed to act for. It is therefore important to keep a tidy and accurate record of bank statements, invoices and receipts for all transactions.
If you would like us to assist you in preparing your annual report, we can do so at the Court’s fixed rate of £265 plus vat. Please contact a member of the EVCU to discuss this further.
Ongoing Advice And Assistance For Deputies And Attorneys
Our EVCU team are also available to assist you throughout your role as Attorney or Deputy, by offering advice on issues, queries or concerns you may encounter throughout your role. We can assist you with any future applications which may need to be made to the Court of Protection (e.g to sell or purchase property, to make a gift, for a Will to be created or amended etc).
Choosing A Professional Deputy Or Attorney
Professionals have the advantage of having extensive knowledge and experience of these roles. When appointing a professional who is also on the Court appointed list of Panel Deputies, you can have the comfort of knowing that the Court of Protection themselves have scrutinised and inspected the professional concerned and considers them to have the expertise to have been selected for the limited nationwide Panel. It is also worth noting that professional Deputies too have to complete annual reports to account for all funds on behalf of the incapacitated person and are subject to spot-checks and inspections by the Office of the Public Guardian (“OPG”).
Appointing a third-party professional can also relieve the stress and the burden of acting in this legal post, which can often take away from being the friend or relative to the person in question. It can also avoid putting you in a potentially difficult position with other members of P’s family and avoids the possibility of conflicting interests becoming an issue.
See our page for more information on appointing a Professional Attorney or Deputy.
Talk to Tollers
For complete peace of mind, please contact a member of the EVCU to arrange a fixed fee appointment to obtain clear and concise advice, support and guidance to complement your role.