What are the risks of lay Deputyship – and how can you manage them?

Becoming a lay property and affairs Deputy for a loved one brings with it a set of crucial yet complex responsibilities. These include making financial and property decisions on behalf of a person who is having difficulties around their mental capacity to manage their own affairs, due to illness or injury.

While this position allows trusted individuals – often family members or close friends – to safeguard matters for those close to them, it can come with a host of unique and complex legal, financial and emotional challenges. These range from family disputes and financial oversight to handling investigations and court hearings.

Here, we outline some common obstacles faced by lay Deputies and give some tips on how to minimise and overcome them:

Family disputes and conflicts

When a loved one loses capacity to govern their own affairs, there’s often a degree of disagreement among family members on how their finances and property are managed – and unfortunately, this can sometimes lead to accusations of mismanagement or bias against one or more deputies.

Not only can these conflicts cause emotional distress, but there’s a risk of legal action if disputes cannot be resolved amicably and in a timely manner. For example, a sibling could accuse the deputy responsible for the estate of misusing funds, which can in turn lead to investigation, and potentially to lengthy and contentious Court proceedings.

To-do list:

• Comply with the various requirements of the Office of the Public Guardian’s (OPG) Deputy Standards – these can be viewed on the UK Government’s website
• Record keeping – keep clear records of all finance and property decisions taken, to justify actions if questioned
• Maintain communication – keep the person lacking capacity (‘P’) involved so far as is possible, and consult family members and others involved with P in respect of major decisions, which may also help to avoid misunderstandings
• Seek mediation – if disputes do arise, consider professional mediation services to resolve conflicts and move forward as quickly as possible
• Get a professional opinion – if issues are raised in respect of your conduct as Deputy, seek legal advice as to your position

Fraud or exploitation concerns

Whilst financial abuse, exploitation and fraud are far from the norm in Court of Protection cases, there is nevertheless a small but real risk of external parties attempting to exploit the vulnerable person’s finances.

What is more common is undue pressure from family members requesting money or pushing for financial decisions which may not be in the best interests of P.

OPG’s annual report to 31 March 2024 confirms that there were 60,516 Deputies being supervised by OPG in England and Wales at the end of this period. In addition to this, there were 8,039,546 Lasting Powers of Attorney and Enduring Powers of Attorney on the OPG’s register.

It is the role of OPG to supervise Deputies and Attorneys, and they carried out 3,647 investigations within the period. Not all of these will have been in respect of the actions of Deputies – but a proportion will have been.

To-do list:

• Be vigilant – watch for unusual transactions on P’s accounts, or pressure from others regarding financial matters
• Set boundaries – avoid meeting demands for money from P without proper justification. Take particular care around the issue of making gifts of money or property and seek proper advice before acting, as this may fall outside the scope of the Deputy’s powers and require specific authorisation from the Court
• Report concerns – if you suspect an outside party or family member may be attempting fraud or applying undue influence, it’s important to report this to the Office of the Public Guardian (OPG) or other relevant authorities
• Use security measures – consider appointing dedicated financial professionals to oversee transactions

Financial mismanagement and liability

There are strict rules in place for how a Deputy should go about managing a vulnerable person’s funds. With these comes the risk of mishandling, including for example missed tax payments or unapproved spending, leading to potential legal consequences.

For instance, an inexperienced Deputy may unintentionally fail to keep receipts and/or spending records, leading to scrutiny from the OPG.

Alternatively, the Deputy may find budgeting more complex than originally anticipated – particularly in instances where care costs for the protected person are high – leading to them being unable to meet their requirements.

To-do list:

• Maintain accurate records – keep detailed records of all transactions, invoices and receipts relating to P’s assets
• Use separate bank accounts – ensure that P’s funds are managed separately from the Deputy’s personal finances
• Compile annual reports – submit accurate deputyship reports to OPG on time. If there are difficulties, it is possible to seek professional help with this aspect of the role
• Consult experts – if you’re unsure about managing complex finances, seek support from a legal professional specialising in Court of Protection work, who will be able to give you personalised advice on how best to proceed

Investigations by OPG

All Deputies appointed by the Court of Protection are subject to oversight – and any concerns raised can lead to an investigation.

This can be a daunting prospect for many Deputies managing their loved ones’ affairs, who may worry they could be removed if genuine mistakes are made, e.g. an inability to account for missing receipts.

To-do list:

• Stay compliant – always follow the guidelines set by the Court of Protection and the OPG
• Provide complete records – be ready to submit financial accounts, decisions made, and other records if requested
• Seek legal representation – if an investigation is launched, a legal professional can provide necessary legal support and advise you on how to proceed

Emotional toll of decision making

When managing a loved one’s affairs, there are invariably times when you’ll be tasked with making difficult decisions that you, as Deputy, believe to be in the best interests of P, but which do not align with their wishes.

In these instances, with so many factors to consider, even the most diligent lay Deputy can experience feelings of guilt or doubt over whether they are truly acting in P’s best interests.

A common example is deciding whether to move a vulnerable parent or sibling into a care home, despite their past wishes to remain at home. This is an area where decision making in respect of property and finances intersects with health and welfare decisions.

It is important to ensure that a property and finance Deputy is not making welfare decisions – although the Deputy may find that they are, because of their role as a family member for P, ‘wearing two hats’ and become involved in the welfare decision-making process, along with relevant other parties.

To-do list:

• Follow the ‘best interests’ principles set out under the Mental Capacity Act 2005 – make sure that all decisions align with P’s best interests
• Seek advice from a qualified professional – if you remain uncertain, it may help to seek advice from medical professionals, social workers, or a lawyer specialising in the relevant field
• Keep personal feelings in check – though it may seem easier said than done, decisions should be based on legal and ethical guidelines rather than personal emotions
• Find relevant support networks – for additional support navigating your responsibilities, you may wish to join Deputyship support groups or seek counselling if you find you’re struggling emotionally

Delays and bureaucratic challenges

An unavoidable reality of the Court of Protection process is that, even if you’re well prepared at the outset, Court applications (for example, permission to sell P’s property) can often take months to finalise.

Whilst it’s possible to ask the Court to deal with matters on an urgent basis, justification must be evidenced for this, and it is ultimately for the Court to determine whether this meets their criteria or not.

To-do list:

• Plan ahead – try to submit applications in good time, to prevent delays in the Court’s timescale affecting P’s financial position
• Follow up – check with the Court of Protection on application progress, if nothing is received outside anticipated timeframes
• Seek legal assistance – if Court delays are causing P or the Deputy difficulties, consult a legal professional to explore options for expedited processing

Mental capacity challenges

One of the difficulties in the Court of Protection process is the fact that capacity is often a matter of degree, making a simple ‘yes’ or ‘no’ designation impractical. This can lead to disagreements about whether P has capacity to make certain decisions.

Fluctuating capacity, where P may be capable of making decisions one day but not the next, or even at different times of day, can also make choosing the best course of action a legally complex and emotionally draining task – particularly when P is insistent that they remain in control.

To-do list:

• Obtain professional assessments – if there’s uncertainty about P’s capacity, seek expert evaluations. There are many specialist capacity assessors who can be of assistance
• Document changes in capacity – maintain records of any fluctuations in P’s mental capacity over time to present as clear a picture of the situation as possible
• Consult legal experts – if P disputes their lack of capacity, seek legal advice on potential next steps

Stress of Court Hearings

In some circumstances, lay Deputies may be required to justify decisions they’ve made on behalf of the protected person – for instance, in the event they receive a challenge from another family member over their actions, or status.

This can be an intimidating process for individuals unfamiliar with legal proceedings, particularly if they’re fearful of making a mistake in a Court setting.

To-do list:

• Be well prepared – make sure you gather all relevant documents, including financial records and correspondence, ahead of the hearing
• Seek legal guidance – if your case is complex, it’s advisable to instruct a legal professional to represent you
• Stay calm and professional – remove emotion from the equation as much as possible, approaching the matter with a clear and factual mindset

How we can help

Navigating Court of Protection matters can seem like an overwhelming responsibility at times, especially for individuals who are otherwise unfamiliar with legal matters – but the good news is there’s no need to go it alone.

At Price Slater Gawne, our caring and experienced team of specialist Court of Protection lawyers will be happy provide legal representation and guidance throughout the entire process, taking a personalised approach to your unique situation and helping you reach the best possible outcome for you and your loved one.

If someone close to you has lost capacity, or you’re looking for advice on how to proceed with a Court of Protection matter, please contact the team on 03333 058375 or email cop@psg-law.co.uk to discuss your needs.

We’re here to help you.