With Britney Spears’ fight against her conservatorship in the US making headlines around the globe, you may be wondering what our equivalent is in the UK, and how it functions.
The English and Welsh version of a conservatorship is called a deputyship, designed to protect people who ‘lack mental capacity’ by appointing a deputy to manage their affairs and make decisions on their behalf.
Although deputyships fulfil an important role, there is some concern that they could be implemented in a discriminatory manner against vulnerable groups, including disabled people. In these cases, a deputyship could be considered a breach of Article 8, Article 14 or Article 1 of the First Protocol of the Human Rights Act, which protect our rights to a private life, freedom from discrimination and peaceful enjoyment of property respectively.
We spoke to Bethan Harris, a barrister with expertise in the area, to gain insight into the ins and outs of deputyships.
What types of deputyship are there and how are they enshrined in law?
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There are two distinct types of deputyship: property and financial affairs deputyship (PFAP) and personal welfare deputyship (PWD). Approximately 375 PWDs and 15,000 PFAPs are applied per year.
A PFAP allows a deputy to take over paying an incapacitated person’s bills and other financial affairs, like organising their pension. Harris said, “Anything beyond the cases where really the only income is the social security benefits will require a deputyship, so that means individuals are appointed to make those decisions about a person’s property, money and possessions.”
For PWDs, a deputy is appointed to make decisions about a person’s health and welfare, including medical choices. “The extent of those powers can be very wide ranging, but they’re defined by the courts in the deputyship order that’s set up. They are much less frequent than property and affairs deputyships,” added Harris.
The two types of deputyship can both be applied when an individual needs to have their welfare and their financial decisions managed by someone else.
Deputyships are not like lasting power of attorney (LPAs) papers. An LPA allows someone to choose who they would like to make decisions for them in the future, if they cannot make decisions themself. A deputyship is used if the person has already lost the capacity to make an LPA.
Who are deputyships used for?
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People can apply to become someone’s deputy if the person concerned ‘lacks mental capacity’, meaning they cannot make a decision for themselves at the time it needs to be made, as decided by the Court of Protection (COP). This does not necessarily mean that the person is completely incapable of making decisions. They may still be able to at certain times.
Applying to be a deputy for someone requires meeting strict standards. Courts will usually only appoint a personal welfare deputy if:
- There’s doubt whether decisions will be made in someone’s best interests, for example because the family disagrees about care.
- Someone needs to be appointed to make decisions about a specific issue over time, for example where someone will live.
“The overwhelming majority of deputyships are held when a person has lost their mental capacity, or because of a lifelong condition has not been able to attain mental capacity in relation to managing their property,” explained Harris.
A PFAP is not always required. If a person’s possessions are limited to personal property and social security benefits, then “it can be sufficient to have what’s called an appointee, which is a different instrument set up on social security legislation.”
All these instruments work on the premise that there always has to be an alertness to whether the person does or does not have capacity at any given time
PWDs are more complex. They are sometimes applied for by parents who have a disabled child moving into adulthood who is not able to make decisions on their own.
“It’s known to be particularly difficult to make that transfer from children’s services into adult services,” said Harris. “[Parents] were looking for ways that they could get recognition and a voice of authority in negotiating the situation for their adult children. The way to do that would be to have a PWD because you only have to show it to whatever body you’re dealing with. That is not actually the legal effect precisely, but that’s the practical effect.”
However, securing a PWD can be difficult. The legal framework for deputyships is enshrined in the Mental Capacity Act (MCA), designed ‘to protect and empower people who may lack the mental capacity to make their own decisions about their care and treatment.’
Without a deputyship or LPA in place, the mechanisms for decision-making for an incapacitated individual are enshrined in the MCA, meaning that decisions are made collaboratively by those looking after the person.
Harris explains: “The decision-maker in any given context is the person who has main responsibility for that decision, so if it’s a health decision, it’s the GP or relevant hospital doctor – the main person who’s dealing with that particular treatment. The preference under the Act and in the Court of Protection for decision making on any general welfare matters is for the decision making to be under the principles of the Act rather than under any particular individual.”
Who can apply to be a deputy?
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Only people aged 18 and over can be deputies. They are typically close relatives or friends of the person who needs help. For a PFAP, applicants must have the skills to make financial decisions for someone else.
The COP can appoint two or more deputies for the same person. These set-ups require applicants to tell the court how they’ll make decisions. For example, whether they will always make decisions together in a ‘joint deputyship’ or if they will be allowed the power to make decisions ‘jointly and severally’, meaning deputies can make decisions on their own or with other deputies.
Sometimes deputies are paid. A deputy could be an accountant, a solicitor or a representative of the local authority. The COP can appoint a specialist deputy – called a ‘panel deputy’ – from a list of approved charities and law firms if no one else is suitable or available to take on the duty.
What is the process for implementing a deputyship?
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To apply, applicants fill in an application form, an assessment of capacity form and a deputy’s declaration, as well as a supporting information form. The cost of applying is £365, as well as an additional £485 if a hearing is necessary.
They must name at least three people in the application who know the person they’re applying for. For example, a relative, social worker or doctor. The courts will then either make an order based on the papers provided or set up a hearing to inspect the case more closely. Those close to the subject of the deputyship will be notified and if there are any objections, then the dispute would be reviewed and resolved by the COP.
Securing a personal welfare deputyship can be more difficult because the COP tends to prefer the promotion of individual autonomy.
“We’ve got these two things under the mental capacity act that run side by side: protection of an individual who lacks mental capacity and promoting their autonomy,” said Harris. “It’s thought that [deputyships] don’t promote autonomy so it has to be justified in every case.”
Without evidence proving that a person is lacking mental capacity, a deputyship should not be applied.
How are they reviewed and maintained?
Once a deputyship is in place, it’s overseen by the Office of the Public Guardian (OPG) to ensure deputies are effective and that their charge is still mentally incapacitated.
New deputies get a general level of supervision for their first year, costing £320. Property and affairs deputies are moved onto minimal supervision if they are managing less than £21,000 and are assessed as no longer needing a general level of supervision. Minimal supervision has a cost of £35 per year.
Supervision visits take place to check that deputies understand their duties, have the right level of support from OPG, that their duties are being carried out properly, or if there has been a complaint.
Each application has to be looked at on its individual merit – what’s in the person’s best interest – and has to be evaluated according to the principles of the mental capacity act.
Harris said: “Although a deputyship will be set up on the assumption that the person genuinely lacks capacity in the areas that it covers, all these instruments work on the premise that there always has to be an alertness to whether the person does or does not have capacity at any given time.”
Those involved in the care of someone under a deputyship have a responsibility under the MCA to take practical steps to help that person make decisions for themselves.
In 2019, the Vice-President of the Court of Protection, Justice Hayden, outlined a set of principles to govern PWDs. One of the conclusions set out the principle that personal welfare deputyships should be applied warily to ensure the party involved is given the best chance to develop independence:
“The extension of parental responsibility beyond the age of eighteen, under the aegis of a PWD, may be driven by a natural and indeed healthy parental instinct but it requires vigilantly to be guarded against. The imposition of a legal framework which is overly protective risks inhibiting personal development and may fail properly to nurture individual potential.”
While there is no simple framework that applies to all deputyships, Harris sums it up: “Each application has to be looked at on its individual merit – what’s in the person’s best interest – and has to be evaluated according to the principles of the mental capacity act.”