Becoming a professional Deputy comes with a host of duties & responsibilities set by both the Court of Protection and Office of the Public Guardian (‘OPG’).
Management of somebody’s property and financial affairs can be challenging. But what about the challenges that come hand in hand with the role but aren’t written about and there is no guidance to follow?
The role, by its very nature, comes with an intrinsic link to the protected person (P) and/or their family. A Deputy becomes involved in most aspects of P’s life and can often inevitably take on the role of solicitor, support worker and friend.
So let’s address some of those challenges and the balance that needs to be reached.
Capacity is decision specific so it is important to ensure P’s ability to partake in discussions is always considered. Some individuals are high-functioning and can be involved in the majority of decisions being made. Some may have the ability to be involved in decisions but struggle to articulate their views, making their involvement more challenging. So should the Deputy take the easy option and decide for them? Absolutely not!
It is the responsibility of the Deputy to take all steps possible to assist P in expressing themselves. This may be through an intermediary, a translator, a speech and language therapist or even a friend who can liaise with P in a way that they can understand. If P liaises best in-person then this should be facilitated. If they prefer to communicate via text, whatsapp or video calls then the Deputy should respond accordingly. We are in a spoiled generation where IT advances fall in our favour so these should be taken advantage of to better support P.
Where P has the necessary capacity they can confirm how much involvement they would like their family to have with the Deputy. The question comes when P lacks or may lack the requisite capacity to make this decision. What do we do then?
Firstly capacity should be determined and any views, prior or present should be taken into account. When P lacks capacity to make a specific decision the Deputy must defer to others for assistance in ensuring this is made in P’s best interests. How does this work if there are numerous family members who wish to be involved? How do we determine who is best to assist the deputy in making decisions? Often the position is clear: husband/wife, mum/dad, son/daughter. Sometimes less clear e.g.: numerous warring siblings each with their own view on what’s best.
If it can be established that somebody is not acting in P’s best interests the Deputy may simply choose not to consult with them on that matter or give limited stock to their views. Ongoing involvement may not continue if this becomes a recurring theme. The Deputy’s responsibility is to P and this duty remains paramount.
A professional Deputy however is not ‘down on the ground’. They don’t see the day to day workings of P’s life. It is therefore imperative that close relationships are formed with those directly involved in P’s care, whether this is the family, therapy team, support workers, case manager or others.
Minors are often too young to assist in decision making processes so their family must step into this role and the Deputy is reliant on them for advice and guidance. Difficulties arise when a parent disagrees with a financial decision being made as this inevitably impacts on the child and perhaps on what the parents hoped would happen.
How can this tricky balance be managed? A deputy will defer to those involved directly with the child’s care. This won’t just be the parents but may be the therapy team, the care team and any treating professionals. Guidance will be sought where necessary and decisions made on the information available, taking all views into account.
Ultimately, regardless of the deputyship, parental responsibility remains in place and decisions must be made in conjunction with the parents.
Health and welfare crossover
Becoming a financial deputy does not extend to health and welfare decisions and this in itself can create challenging situations. It is important for a Deputy to be mindful of the remit of their Order and stay within its realms. What happens when a family wish to choose where to live but the Deputy determines the funds available? What about challenges with a care package that the Deputy is responsible for paying the invoices for?
Health and welfare decisions must be made on a best interest’s basis by those involved in the care of P. The Deputy can be involved in these meetings but cannot solely make decisions. This is a tricky balance to navigate and it is important P and their family are supported whilst decisions are being reached.
The professional Deputy role goes far beyond the rules and processes set by the Court and OPG. The role is holistic and multifunctional and requires the deputy to liaise and build close relationships with all those involved in the care of P.
Produced by Rachael Oakwood, Associate Solicitor at Irwin Mitchell Solicitors
Rachael Oakwood is an Associate Solicitor within Irwin Mitchell’s Birmingham Court of Protection department. She has over 6 years of experience and primarily manages deputy files and works on behalf of clients who have received multimillion pound settlements.
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