In February 2023 the Office of the Public Guardian (OPG) published new guidance to support lay deputies in understanding their responsibilities as a deputy. A lay deputy, usually a family member or friend, is appointed by the Court of Protection to look after the best interests of an individual who lacks the capacity to make decisions for themselves, if there is no Lasting Power of Attorney in place.
Though the revised set of guidance and standards were designed to support lay deputies, all deputies will now be assessed against these standards to ensure they are fulling their obligation to act for that person’s best interest with honesty and integrity. It is important to note that these changes are not a whole new set of standards and will continue to align with the principles set out in the Mental Capacity Act 2005, rather were created to simplify and streamline the guidance to support lay deputies.
The new deputy standards
In an attempt to simplify the guidance provided, the OPG have created 8 core areas to focus deputy’s responsibilities. These eight areas are:
- Deputyship obligations
- Best interest decision making
- Interactions with P
- Financial management
- Financial record keeping
- Property management
- Decisions related specifically to health and welfare
- Additional obligations
Standard one: Deputyship obligations
The first and the most detailed of all the standards covers a wide range of topics including:
- Being aware of the guidance published by the OPG and of the Mental Capacity Act 2005.
- Understanding the court order appointing you as deputy and the limitation of your powers contained in the order.
- Preparing and submitting reports to the OPG.
- Paying the supervision fees.
- Ensuring an appropriately valued bond is in place.
- Not taking advantage of your position for personal interests or delegating your responsibility (except for seeking expert or professional advice).
- Making applications to the Court of Protection.
- Making certain you apply to end the deputyship if the person regains capacity.
- Alerting the OPG of any changes from the original responses provided in the COP4.
Standard two: Best interest decision making
As mentioned, all deputies must act in the best interest of the person. Standard two talks about how to make sure the decision is in the best interest and the considerations a deputy needs to make. One of these considerations is to involve the person as far as practical, whilst also considering their capacity to make that particular decision.
Standard three: Interactions with P
The shortest of the standards, standard three, applies to both types of deputyship and outlines how a deputy must visit a person to assess their needs. The deputy must discuss such things as their feelings, interests, and beliefs. This visit must be made at least once a year.
Standard four: Financial management
Standard four discusses a wide range of responsibilities on how a deputy handles a person’s finances. Such responsibilities are:
- Making sure you check all benefits a person is entitled to receive are claimed and paid correctly.
- Keeping your own finances separate from those of the person.
- Ensuring all tax obligations are correctly met.
- Managing investments to maximize return with minimal risk whilst having considerations to the person’s circumstances.
- Make certain all of the person’s debts are paid promptly.
- Considering the amount of personal allowance, the person needs whilst also considering their ability to handle money.
Standard five: Financial record keeping
This standard explains the level of record keeping for financial matters expected of deputies. Not only does it discuss how to keep invoices and receipts for all transactions made but to also keep records about how you came to this decision and the factors considered.
Standard six: Property management
Standard six details how a deputy manages a person’s property for Property and Financial deputies. It explains the need for ensuring buildings and contents insurance is in place. It also specifies what to consider before selling the property and what steps to take when selling and clearing the property of personal items.
Standard seven: Decisions related specifically to health and welfare
This standard only applies to Health and Welfare deputies and discusses such topics as deciding where a person lives, who should have contact with the person and the consent or refusal of treatment and health care.
Standard eight: Additional obligations
Finally, the last standard covers some additional considerations for duties such as reporting any civil or criminal investigations to the OPG or informing the OPG of any concerns regarding other deputies.
This is only an overview of the guidance published by the OPG. To access the full guidance on all of the eight core areas and updated standards click here.
We would always stress the importance of a Lasting Power of Attorney and having one in place, just in case the worst happens. However, if you need to apply for deputyship, our experienced Wills & Probate team can also assist you in this area. If you need advice, please get in touch.
