15th March 2022
15th March 2022
WARNING: This blog touches briefly upon outdated attitudes and language, which may cause offense today.
There have been many changes to the operation of the court now known as the Court of Protection over the years, and the role of the Court appointed Deputy has expanded along with this.
This blog will look at how the role of the deputy has developed, and the new challenges faced by deputies nowadays.
The role has of course evolved along with society as we learn and understand more about the reasons a person may lack capacity, and focus on how best to support them in their daily lives.
History of the Court
The origins of the Court of Protection date back to the Middle Ages when the crown assumed a jurisdiction over the person and estates of the “mentally ill”. In 1842, two “Commissioners in Lunacy” later known as “Masters in Lunacy” were appointed. The “Masters in Lunacy” were superior clerks who initially reported to the Lord Chancellor but in 1891 were granted the powers to make Orders on their own.
The Master in Lunacy became an office of the Supreme Court in 1925 and in 1947, was rebranded into the Court of Protection.
Between 1947 and 2007 the Court of Protection was an office of the Supreme Court. The Master of the Court was a judicial officer, supported by assistant masters and civil servants.
The Court of Protection previously operated in a rather informal manner. Solicitors or “receivers” would usually either write to or telephone the court and speak to a court official who would either grant the permission requested or, in complex cases, pass the matter to the Master of the Court.
The Court drew its powers from the Mental Health Act 1983 and followed the ‘old’ set of Court of Protection Rules made in 2001.
The Court of Protection today
The Court of Protection as we know it today was established by s 45(1) of the Mental Capacity Act (2005) which came into force on 1 October 2007. The court now has jurisdiction over the property, financial affairs, personal health, and welfare of people who lack mental capacity to make these decisions for themselves.
The Mental Capacity Act (2005) and the Court of Protection Rules (2007) set out the framework for the operation of the court.
Under section 16 of the Mental Capacity Act (2005), the Court can also appoint deputies to make decisions on behalf of the person lacking capacity.
The responsibilities of a deputy
The deputy is responsible for making decisions on behalf of a person when they cannot do so themselves. In doing this, a deputy must act in that person’s best interests.
The deputy must always operate to an extremely high standard of care and in doing so, may need to obtain advice from professionals and relatives. The deputy has a responsibility to keep the person’s property and money safe.
The deputy must also send an annual report to the Office of the Public Guardian (OPG) to explain all the decisions they have made. This is necessary to ensure that all deputyships are running as they should.
How this responsibility has evolved
From a system whereby a solicitor could contact the court for permission informally to make a decision, the current system applies a much stricter standard.
When a Deputy is appointed the Court with make an Order setting out exactly what powers the Deputy has been given and what decisions require specific court approval using the formal application process.
As the deputy is acting on behalf of the person who lacks capacity, their decisions cover an extremely wide range of areas.
The Deputy may purchase or sell properties for the client. Although a conveyancer will be instructed, this requires a certain level of understanding of property and land law. Should properties require adaptations then the deputy is heavily involved in architect appointments and applications for Disabled Facilities Grants.
The deputy may also choose to invest funds on behalf of the client, meeting with Independent Financial Advisors to discuss portfolio options and likely returns. This requires an understanding of the financial markets.
Given that a person may require care staff to be employed directly or through case managers, a deputy must also give consideration to employment law policies and procedures. These must be kept up to date at all times.
The deputy is also involved in the day-to-day life of the clients and some clients require more frequent contact than others. The deputy often becomes a confidant and is responsible for maintaining relationships with families and friends of clients.
On paper the deputy’s job is to manage the property and financial affairs of client but in real life this role is so much more than that. The deputy often deals with Social Workers, Carers, Case Managers, Care Homes, Court Staff, Financial Advisors, Architects, Estate Agents, Conveyancers, Utility Companies, Insurers, Banks, Businesses, Electricians, Plumbers, Gardeners, Engineers, Security Teams, Phone And Broadband Providers, Doctors, Medical Professionals, Motability Vehicle providers, the DWP, HMRC, OPG, Families, Friends and many more!
This may seem daunting to anyone considering becoming a deputy for a friend or relative and this is where BHP Law can help. By appointing a professional deputy, you can rest assured that the person’s needs are being met and tap into the wealth of knowledge held by experienced professional deputies.
The cost of a professional deputy
If it was an accident that caused your brain injury, then the cost of obtaining the help you need from a professional in managing your money should be recoverable as part of your claim.
This means that you won’t be out of pocket by using a professional deputy because the defendants will have to pay for the costs of the deputyship when they work out what your damages should be.
If you’re not sure whether the solicitor making your claim has budgeted for a professional deputy, just ask them. If they haven’t already allowed for it in your claim, why not ask them to speak to one of our experts today to find out how much could be claimed towards professional deputyship costs?
Our team regularly puts together schedules showing all the different costs associated with deputyship that your solicitor should cover off when making your claim. We would be happy to chat this through with you or your solicitor to make sure that you are claiming everything you are entitled to.
How can BHP Law help me?
Here at BHP Law, we have a friendly and expert Court of Protection team who specialise in both Health and Welfare and Property and Affairs Deputyships.
With offices throughout the North-East our diverse team is able to provide a bespoke and personal approach to our Deputyship clients, putting their wishes and feelings at the centre of every decision and promoting their independence and individuality at every opportunity.
At BHP Law, we are passionate about our clients and provide only the highest standards of client care, if you or a family member would like more information on applying for a Professional Deputyship, our team would be more than happy to help!
To find out more, or to contact our team for a free, confidential, and informal chat with no obligation please visit our website below or contact us on 0800 590 019 or email us at firstname.lastname@example.org.