In order to protect the interests of the person who lacks capacity, the powers a Deputy has are subject to a number of restrictions. The Court of Protection dictates that Deputies are unable to make decisions or take action in various circumstances. These include situations where:
- The Deputy reasonably believes that the person who lacks capacity can make the decision without their help. A Deputy can still help the person reach that decision however.
- The decision would intentionally physically restrain the person who lacks capacity. Exceptions to this rule exist when the decision is necessary to prevent the person coming to harm and the restraint is reasonable and proportionate.
- The decision would contradict a decision made by an Attorney acting under a Lasting Power of Attorney.
- The decision would be to refuse the continuation or provision of life support for the person who lacks capacity.
These restrictions also extend to the financial interests of the person who lacks capacity. The Court of Protection dictates that Deputies cannot:
- Make a will for the person who lacks capacity, or change their existing will.
- Hold any money or property in their own name or on the person’s behalf.
- Make large gifts out of the person’s estate.
A Deputy’s powers are also restricted to what is written on the Court Order. If a decision they wish to make on the person’s behalf is not included in this document, an application can be made to the Court of Protection to either give them permission to make the decision required or change their powers accordingly. When assessing each application, the Court will analyse the circumstances surrounding the decision and judge whether the Deputy’s powers to carry out their duties have been affected.
When Deputy Powers End
1. The Court Order ends
A Court Orders comes to an end when it expires. In order to make decisions on the person’s behalf, a new Court Order must be applied for.
2. The person who lacks capacity recovers
A Court Order can be invalidated by a subsequent Court Order confirming the person’s recovery. Otherwise, a Deputy’s powers can only end when the Court Order expires.
3.The person who lacks capacity dies
A Deputy’s role ends immediately when the person who lacks capacity dies. In such circumstances, the Court of Protection should be notified immediately and legal advice should be sought.
4.The Court discharges the Deputy
The Court of Protection can end your role as Deputy through a request you made yourself, or through the belief that your duties were not carried out in the person’s best interests.
5. The Deputy retires
A Deputy can apply to the Court at any time to resign from their Deputyship. Professional legal assistance is strongly recommended to advise on the best way to proceed
6. The Deputy dies
A Deputy should ensure that arrangements have already been made for the person who lacks capacity, in the event of their death. In preparation for this scenario, legal advice is recommended as the Court of Protection may require a final account of your financial management as Deputy.
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