What are deputies and guardians?
Deputies (in England and Wales) and guardians (in Scotland) manage the affairs of people who lack mental capacity. Under the Mental Capacity Act, lacking mental capacity means that someone is unable to make a decision for themselves due to an impairment of the brain, either temporarily or permanently. For example, people may lack mental capacity if they have dementia, a severe learning disability or a brain injury.
There are two types of deputies:
property and financial affairs deputies - they handle practical matters such as paying bills and managing pensions
personal welfare deputies - they make decisions about medical treatment and care arrangements
There are three types of guardians:
welfare guardians - they make decisions about medical treatment and care arrangements
financial guardians - they handle practical matters such as paying bills and managing pensions
combined financial and welfare guardians - they handle both welfare and financial matters
What is the difference between attorneys under Powers of Attorney, deputies and guardians?
Lasting Powers of Attorney (LPAs) and Scottish Powers of Attorney allow the appointment of an 'attorney' to help an individual manage their affairs in case they lose their mental capacity in the future. They also fall into similar categories: LPAs for health and care decisions and LPAs for financial decisions in England and Wales, and Continuing Powers of Attorney (CPA) and Welfare Powers of Attorney (WPA) in Scotland. Attorneys under a Power of Attorney can only be appointed while the individual has mental capacity.
Deputies and guardians are not appointed by the individual lacking mental capacity. Instead, they are appointed by the Court of Protection (in the case of deputies) or by the Sheriff Court (in the case of guardians) in the situation that an individual has already lost their mental capacity and did not make a relevant Power of Attorney.
What are the responsibilities of a deputy or guardian?
Deputies and guardians are responsible for either the property and financial affairs of the individual, or their personal welfare, depending on the type of deputyship or guardianship. They are responsible for making decisions on behalf of the individual lacking mental capacity - or helping them to make a decision - taking into account the level of their mental capacity at the time. They must always ensure that all decisions are in the best interests of the individual.
Who can apply to be a deputy or guardian?
Deputies and guardians are normally close relatives or friends of the individual. They must be 16 or over - and there can be more than one deputy/guardian. In England and Wales, where there is more than one deputy, the dupited can either act:
together (also known as ‘joint deputyship’) - ie means all the deputies have to agree on the decision
separately or together (also known as ‘jointly and severally’) - ie the deputies can make decisions on their own or with other deputies
In England and Wales they need to apply to the Court of Protection and pay relevant fees. In Scotland they need to apply to the Sheriff Court and pay relevant fees.
Read guidance from Gov.uk for the application process and fees when applying for deputyship in England and Wales. Read guidance from the Office of the Public Guardian (Scotland) for the application process and fees when applying for guardianship in Scotland.
What happens following an application?
England and Wales
There is a 14 day wait following submission of an application to become a deputy to allow any relevant parties to object. The Court of Protection will then approve or reject the application and possibly hold a hearing if further information is required or if there is an objection.
If the application is successful, the newly appointed deputy will be sent a 'court order'; this allows a personal welfare deputy to start acting on behalf of the individual straight away. However, a property and financial affairs deputy will need to pay a security bond first.
The applicant must lodge their application with the Sheriff Court in the area in which the adult lacking capacity lives. A copy of the application and reports will then be sent to all interested parties, including the Office of the Public Guardian (Scotland). Once the Office of the Public Guardian (Scotland) has received their report and read through it, it will contact the sheriff informing them of any observations.
If the applicant is applying to become a financial guardian, the Office of the Public Guardian (Scotland) will also write to them and send them a leaflet introducing themselves and explaining the guardian’s duties once appointed.
If the application is successful, the newly appointed guardian will be sent a court order setting out the powers granted. The Office of the Public Guardian (Scotland) is also sent this order and will register the appointment on receipt. The applicant will then be issued with a certificate of appointment and further copies of the court order.
If the applicant applied to be a welfare guardian, the Office of the Public Guardian (Scotland) will notify the relevant local authority and the Mental Welfare Commission. It is their duty to supervise the guardian’s appointment and provide guidance.
If the applicant applied to be a financial guardian, the Office of the Public Guardian (Scotland) will issue an inventory of estate and management plan forms along with the certificate appointment and copies of the court order. Until the Office of the Public Guardian (Scotland) has approved the guardian’s management plan, the guardian’s powers will be limited.
The sheriff may also set a caution; if this is the case, the Office of the Public Guardian (Scotland) will not register the applicant’s appointment until the bond of caution is in place.
What are the rules around accounts, gifts and expenses?
Comprehensive accounts must be kept by property and financial affairs deputies (eg bank statements, receipts etc).
Certain expenses (eg phone calls, postage and travel costs) can be claimed for duties carried out in the course of being a deputy or guardian. However, a detailed report must be kept and the Office of the Public Guardian may ask for a repayment in the case of any expenses which are deemed unreasonable. Deputies cannot claim for:
travel costs for social visits
time spent carrying out deputy duties (unless the deputy is a professional deputy, such as a solicitor)
The ability to buy gifts or give gifts of money on behalf of the individual (eg donations to charities) will be detailed in the court order. All gifts must be reasonable and deputies must make sure that any gifts do not reduce the level of care provided.
How are deputies supervised and what is the annual report?
Deputies and guardians are supervised by the Office of the Public Guardian (OPG) and the Office of the Public Guardian (Scotland). This may occasionally include supervision visits.
Deputies and guardians must write a report each year which explains any decisions they have made as a deputy or guardian. The annual report can be submitted online.
How can deputyship or guardianship be changed or ended?
In order to renew, change or end a deputyship in England and Wales, an application must be submitted to the Court of Protection. Read changing a deputyship or ending it for further information.
In order to end a guardianship in Scotland, an application must be submitted to the Mental Welfare Commission (where ending a welfare guardianship or the Office of the Public Guardian (Scotland) (where ending a financial guardianship). An application to end a financial guardianship should be submitted using the Discharge Application Form. Read changing the order, renewing an order, or discharge for further information.