A professional deputy is appointed by the Court of Protection to manage the affairs of people who have lost the capacity to do this for themselves. Professional deputies are usually required when there isnt a family member available or able to undertake the role.
A deputy for property and affairs can make decisions about financial matters. The deputy only has authority to manage what is set out in the court order, and only for decisions the person cannot make for themselves. Any action taken must be in the individual’s best interests. The deputy, in general, is responsible for dealing with any income and paying any bills and debts; handling any cash assets, such as bank and building society accounts; managing, purchasing or selling property; making small gifts on special occasions such as birthdays; and dealing with any capital assets and investment decisions.
In November 2021, Senior Judge of the Court of Protection, HHJ Carolyn Hilder,considered an application by the local authority for a declaration as to whether a deputy, on a standard deputyship order, was a person ‘authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support.’
At the centre of Calderdale MBC v AB, Daniel Lumb and AnB [2021] EWCOP 56 was AB, who had a property and affairs deputy, solicitor Daniel Lumb. Court of Protection orders tend to be anonymised, hence the use of AB instead of an identifying name for the person at the centre of the proceedings.
AB’s brother-in-law received a direct payment from the local authority under the Care Act 2014 to fund a package of care provided by AB’s siblings.
Mr Lumb had raised a query as to whether the deputyship granted him authority to receive and manage AB’s direct payments.
The query surrounded the meaning of the relevant sections of the Care Act 2014 (ss.32 – 33 inclusive) and whether these meant that a financial deputy (such as Mr Lumb) amounted to a ‘person authorised under the Mental Capacity Act’. If so, no one else (such as AB’s brother) could seek a direct payment without the deputy’s support. This would give the deputy the power to terminate the arrangement if he saw fit.
The local authority made an application to the Court of Protection to determine the scope of the deputy’s authority in respect of direct payments. Its position was that Mr Lumb did not have the authority required by the Care Act to be an authorised person under section 32. This position was not because they thought Mr Lumb was an inappropriate person had he sought authority, but rather that the authority granted to him by the property and affairs deputyship order does not automatically make him an ‘authorised person’ for the purposes of section 32.
Senior Judge Hilder agreed with the local authority’s stance. Therefore, the standard powers granted under a property and affairs deputyship do not give the deputy authority to make decisions about the adult’s needs for care and support. Rather, matters of care and support remain the remit of the local authority as set out in the Care Act legislation. The decision about the application of direct payment arrangements rests with the local authority to determine whether the person seeking the payment is a ‘suitable person’ who would act in the adult’s best interests in arranging care and support and is capable of doing so. A property and affairs deputyship appointment is not necessarily a requirement to have the requisite standing to receive and apply direct payments. This is an example of how the oversight and input of friends and family continues to be important when supporting an individual with their care and support arrangements, despite the appointment of a professional property and affairs deputy.
You can find more information on professional deputyship here.
Kirsty Nickson, Associate Solicitor in our Court of Protection team - contact Kirsty by email or telephone - 0161 871 743