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Mental Capacity Act 2005

A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

What is a deputy?

A deputy is a person the Court of Protection appoints to make decisions for you once you have lost capacity to make them yourself. This is different to an attorney, because an attorney is someone you appoint yourself, while you still have capacity.

  • A deputy usually makes decisions about finances and property. For example if you have a large sum of money that needs to be invested and managed or you have property which needs some work to be done on it before it can be sold.
  • The Court will usually appoint a deputy if you have not appointed an attorney under a lasting power of attorney and a series of decisions has to be made.

The Court can decide:

  • the length of the appointment
  • what level of supervision you need from a deputy
  • what fees you will have to pay the Court - there is government guidance on this
  • whether the deputy should be paid for their work from your income or savings. However, the Court may ask your deputy to pay a security deposit before they spend any of your money, and to keep regular accounts of any of your money that they spend. If your finances are complex, it is more likely that a professional deputy would be appointed, and that they would be paid with your money.

The Court can also make a one-off decision without appointing a deputy.

Who could be my deputy?

A deputy can be someone like a friend, family member or professional with the right skills, as long as they:

  • are 18 years old or above
  • have the mental capacity to be your deputy.

Anyone applying to the Court of Protection to act as your deputy would need to show that:

  • It is in your best interests. This means considering your values, views and preferences, and consulting people who play an important part in your life. They should also learn about their duties by reading chapter 8 of the Code of Practice to the Mental Capacity Act and contacting the Office of the Public Guardian.
  • They have the skills and ability to carry out the duties of a deputy.
  • They will be trustworthy and reliable.

You can get more information on how to apply from the Gov.uk website.

Are there any decisions a deputy is not allowed to make?

A deputy cannot normally make a decision that:

  • they are not authorised to make by the Court of Protection
  • you have the capacity to make yourself
  • restrains you or your freedom of movement (unless this has been authorised by the Court)
  • uses force to prevent you from doing something or going somewhere
  • goes against a decision made by your attorney acting under a lasting power of attorney
  • refuses any treatment that would help you to stay alive for longer, should you develop a life-threatening medical condition in the future
  • you have already covered in an advance decision you have made – these will be refusals of treatment.

However, a deputy appointed to make healthcare or personal care decisions on your behalf will very likely be able to decide matters such as:

  • where you will live
  • who you will be able to have contact with
  • whether or not you should have medical treatment that the doctors consider is in your best interests, except for life sustaining treatment and certain other unusual or complex medical procedures.

The Court will not appoint a healthcare or welfare deputy unless there is a need to make regular welfare decisions. If there is a disagreement about where you will live, for example, the Court will make that decision itself rather than appoint a deputy.

What happens if a deputy does not act in my best interests?

If the Court of Protection decides the deputy has not acted in your best interests, has become incapable of acting as your deputy or has acted outside of their powers it can:

  • remove them, or
  • change the type of authority they have to make decisions for you.

The Office of the Public Guardian supervises deputies so you or anyone supporting you can complain to them if you have concerns about the way a deputy is acting, and you feel they are not acting in your best interests.

< Lasting power of attorney (LPA) Court of Protection >

This information was published in November 2017. We will revise it in 2019.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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