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The Deputy Order an individual receives upon appointment sets out their powers in relation to person who lacks capacity. Powers can apply to any area in which the person could have acted for themselves, but will primarily centre on an area relating to either:
- Property and financial affairs; or
- Personal health and welfare.
The decisions a Deputy makes can often have far reaching effects for the person who lacks capacity. For this reason, a system of checks is in place to ensure that their responsibilities are carried out sensibly and honestly. As set out in the Office of the Public Guardian’s Deputy Guidance, when carrying out their responsibilities, a Deputy must always:
- Make decisions in the person’s best interests;
- Make only those decisions authorised by the Court order;
- Have regard to all relevant guidance in the Mental Capacity Act Code of Practice;
- Adhere to the Mental Capacity Act’s five statutory principles; and
- Apply a high standard of care when making decisions.
Failure to comply with the duties listed in the Order and on the checklist above could result in the Court of Protection revoking the Order completely and, in some circumstances, making the Deputy personally liable to claims of negligence or criminal fraud charges.
When carrying out their responsibilities, the Deputy must ensure that they are constantly acting in the person’s best interests. This ranges from minor decisions such as deciding what they eat, to major decisions such as financial transactions. Deciding what is in a person’s best interest however, is a difficult concept to determine and it is therefore important that the following factors are considered before making any definitive choice.
When deciding what is in the person’s best interest, a Deputy should:
- Involve the person who lacks capacity in as much of the decision as possible.
- Consider any beliefs or feelings that they may previously have expressed.
- Consider if the person has the capacity to make the decision for themselves or whether they may have the capacity in the future.
- Consult others close to the person about their views on their best interests.
- Identify any other factors the person may have contemplated if they had the capacity to do so.
When assessing whether the Deputy acted in the best interests of the person who lacks capacity, the Court will want to ensure that, alongside the checklist above, the Deputy acted in the ‘reasonable belief ‘ that what they were doing was in the person’s best interest. The Deputy would be required to show therefore that it was reasonable for them to think that they were acting in the person’s best interests at the time they made their decision or took action.
Mental Capacity Act Statutory Principles
The Mental Capacity Act gives power to people to make decisions for themselves as much as possible. It also protects people who may not be capable of making decisions for themselves by instructing a set of principles that Deputy’s must adhere to all times when carrying out their duties.
These five statutory principles provide a benchmark for decision makers.
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.
- Individuals have the right to make unwise decisions.
- Any decision made for the person who lacks capacity must be done in their best interests.
- Any decision made must be in the least restrictive of their basic rights and freedoms.
Duty Of Care
When carrying out their services, a Deputy is expected to show a duty of care at all times. This concept however, varies in leniency depending on whether the services were paid for or not and if the Deputy holds relevant professional qualifications.
A Deputy not being paid for their services is expected to use the same duty of care as if they were managing their own affairs and looking after themselves. If this is found not to be the case, they could be found liable for a claim of negligence.
Deputies being paid for their services are expected to use a higher degree of care when carrying out their duties. Likewise, deputies whose duties form part of their professional work must also demonstrate a high duty of care and operate alongside their profession’s regulations.
A Deputy has a fiduciary duty to not take advantage of their position. This includes situations involving a conflict of interest. A Deputy would therefore be forbidden by law to buy a house he was selling on behalf of the person lacking capacity. In addition, deputies are not allowed to use their position for any personal benefit, including circumstances where the person lacking capacity is not adversely affected.
In certain cases, a family member acting as a Deputy could create a conflict of interest. In such instances, the Deputy should follow the Act’s statutory principles as best they can and ensure every action is purely in the best interests of the person involved.
Duty Not To Delegate
A Deputy also has a duty not to delegate their decision-making responsibilities to a third party. Whilst professional advice may be sought in complex scenarios, such as medical and financial cases, the Deputy must ensure that the decision-making powers rest solely with themselves. Situations can arise however where the Deputy has no other choice than to delegate their powers to another person. For instance, through unforeseen circumstances or specific tasks which the court would not have anticipated the deputy to attend to originally. These situations grant the Deputy limited power to delegate accordingly, but they would still be held responsible for any action or decision taken and therefore liable for any faults made.
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