The Office of the Public Guardian (OPG) published Deputy Standards in February 2023, which include the OPG’s standards for lay deputies, public authority deputies and professional deputies, and guidance to advise on how they can meet those standards.
It’s vital that anyone who has been appointed as a Deputy for a person who lacks capacity to make decisions for themselves, is fully aware of the standards set by the OPG, and what is expected of them when acting as a deputy, says Sarah Allen, Head of Wills, Trusts and Probate at Tallents Solicitors.
Who can be a deputy?
Deputyship Orders are only made by the OPG when a person lacks capacity to manage their own affairs. The deputyship must be applied for from the OPG. There are three types of Court of Protection appointed deputies;
Lay deputies – these are usually family members or friends of the person who lacks capacity to make decisions for themselves. Lay deputies cannot charge fees.
Public Authority deputies – if no family member is available, willing, or able to act as a deputy, the court may appoint a local authority or health body as a deputy; these are referred to as public authority deputies. Public Authority deputies are allowed to charge fees for their services at a fixed rate.
Professional deputies – these are usually appointed when there is no family member available or willing to act as a deputy, and there are more complex issues to manage. Professional deputies are paid for their services and are usually solicitors, accountants, or financial advisors.
What are the standards required of a deputy?
The OPG confers obligations on a deputy via a deputyship order and there are clear standards which must be met.
For newly appointed lay deputies, the OPG will assign a Supervision case manager as a point of contact for any questions, who will also conduct a settling-in call at the start of the deputyship and aim to visit the new deputy in the first year.
There are eight categories for the standards which can apply to property and financial affairs, health and welfare, or both. Each type of deputy will be assessed against the standards relevant to them by reviewing the responses on the annual report, and through assurance visits and case reviews.
- Core deputyship obligations – depending on the type of deputy (Lay, Public Authority or Professional) there are different expectations of the level of technical knowledge and expertise, but all deputies are expected to understand and meet their individual obligations to enable them to perform in the role and carry out their duties.
- ‘Best interest’ decision making – deputies must consult relevant persons as required, including the person who lacks capacity to consent. Records showing conversations including evidence of their feelings and wishes must be kept.
- Interactions with the person who lacks mental capacity to make decisions for themselves – deputies must visit at least once a year and as often as reasonably necessary.
- Financial management – funds should be kept separate, account management should be transparent, relevant benefits should be applied for, taxes and debts should be paid on time and an adequate personal allowance should be made. Deputies should try to get the best possible return on savings with the least amount of risk.
- Financial record keeping – records must be kept of all significant financial decisions, including receipts and invoices. Explanations must be made for all significant financial decisions in the annual report.
- Property management – any property should be kept secure and insured. Any decision to sell a property must be in the person’s best interest.
- Decisions specifically relating to health and welfare – the OPG must be kept informed about key decisions made on behalf of the person, such as: deciding where they should live, who has contact with them, what health treatment they should have.
- Additional obligations – such as: informing the OPG if there are any ongoing police investigations or civil proceedings that relate to the person or the deputy, if anyone has any concerns about another deputy, etc.
I’ve been asked to be a deputy – what do I do next?
Sarah finishes: being appointed a deputy for another person’s property and financial affairs or health and welfare is no small undertaking and the Private Client team at Tallents Solicitors is here to guide anyone who may be facing this task on behalf of a family member or a friend.