Deputyship for people living with dementia

A property and affairs deputyship is the most common type. It is used to make decisions about a person’s property and financial affairs, if they can no longer do this for themself. This might include:

• deciding on practical daily tasks, like paying the person’s bills or applying for benefits on their behalf
• more complex decisions, such as choosing where to invest the person’s savings or how much to spend on their care.

If the person doesn’t have any property or savings and their only income is from benefits, they do not need a deputy. This is because their benefits can be managed by someone appointed by the Department for Work and Pensions (DWP) – this person is known as an ‘appointee’. For more information see the government website.

A personal welfare deputyship can be used to make decisions about a person’s care and medical treatment, if they can no longer do this themself. These decisions might include whether the person moves into residential care or whether they should have a particular operation.

Personal welfare deputies are only rarely appointed. Examples might include situations where:

• there is a history of disagreements within the family 
• the person is at high risk of abuse
• a series of decisions needs to be made over time – for example, decisions about treatment for an underlying health condition.

When deciding whether to appoint a personal welfare deputy, the Court of Protection will look at the circumstances and consider what’s in the person’s best interests.

Most often, personal welfare deputyships are not needed. This is because care and treatment decisions can usually be made on a case-by-case basis by the professionals providing the care. These professionals can use their skills and knowledge of the person to make these decisions in the person’s best interests.

When this happens, the professionals should involve those who are close to the person in any decision-making. They should also involve the person with dementia as much as possible and take account of their wishes and feelings.

If you disagree with the professionals about what is in the person’s best interests, you can ask the court to make the decision or to appoint a personal welfare deputy to make the decision.

Both deputyship and LPAs allow someone to make certain decisions on behalf of a person who can no longer make those decisions. However, there are some key differences.

If the person you care for still has capacity to grant an LPA, an LPA is probably a better option than deputyship for the following reasons:

• An LPA allows the person to choose for themself who they want to make decisions, whereas deputies are decided by the Court of Protection. This means the court could appoint a professional who doesn’t know the person.
• An LPA can be more reassuring for the person with dementia because it can give them a feeling of control at a time when they might be worried about the future.
• LPAs are cheaper to set up than deputyships.
• A deputyship can take longer to set up than an LPA. This can cause problems for families in the meantime, for example if the person has bills that need to be paid.
• Personal welfare deputyships are rare, whereas health and welfare LPAs are much more common and are easier to set up.

However, if the person with dementia has already lost the mental capacity to make an LPA, it will be too late for them to set one up. Deputyship may be the only option.

While an LPA has advantages not everyone wants to make one. Some people also like the extra supervision that goes with deputyship.

A deputyship can still allow you to make the best decisions you can for the person. If it is too late for them to set up an LPA, try to focus on what you can do for them and think about applying for a deputyship if you can.

In order to become a deputy, you must:

• be at least 18 years old 
• agree to being a deputy 
• be approved as suitable by the Court of Protection.

Being a deputy can be complicated and time-consuming. For a property and affairs deputyship, you need to be organised and keep good records. This may be particularly challenging if the person’s finances are complex. 

Because of this, you should think carefully about being a deputy before taking on the role. It could be helpful to get some advice about it first. If you decide to take on the role, you can get support from the Office of the Public Guardian (OPG).

If a relative or friend can’t take on the role, you could ask a professional to apply to become the person’s deputy, or the court may choose someone. Solicitors for the Elderly can help you to find a lawyer near you.

A deputy could also be a representative from the person’s local authority. This might happen if they are involved with the person’s care and there is no family member or friend who can, and wants to, take on the role.

Do note, however, that professional and local authority deputies will charge for their time. Their fees are normally paid from the finances of the person with dementia. The court will monitor this and will only approve the cost if it is reasonable.

Some property and financial affairs deputyships allow the deputy to make decisions about the person’s property, but some do not. You should think about this when you apply. If you think you will need to sell the person’s house (for example, to pay for care fees), you should ask for that ability to be included in your deputyship when you apply.

If you already have a deputyship order, you should always check the wording of the order before making any decision about the person’s property. If you are still unsure whether you’re allowed to make the decision, check this with the Court of Protection.

There are certain additional rules if you jointly own the property with the person. You should get legal advice if this is the case.

It may be possible for a deputy to make limited gifts on the person’s behalf, but this will depend on the details of the deputyship order. Check the order first before giving any gifts.

Normally the order will allow gifts to be made to:

• family members or friends of the person on ‘customary occasions’, such as birthdays, weddings or civil partnerships, anniversaries or religious festivals
• charities that the person has given to previously. 

Before giving any gifts, you should consider the person’s finances and whether giving the gift would affect their ability to meet their needs both now and in the future. Gifts should always be well within what the person can comfortably afford.

If you are able to make a gift on the person’s behalf, involve them as much as possible in the decision. Think about the gifts the person has given in the past.

It’s important to note that under the law, a ‘gift’ can include a wide range of things that you may not think of as gifts. As well as presents and donations, gifts can include:

• selling the person’s property at less than market value (the amount by which the sale price falls short of market value counts as a gift)
• living or allowing someone else to live rent-free or at a cheap rate in the property (the amount by which the rent price falls short of market value counts as a gift)
• allowing someone an interest-free loan from the person’s money (the amount that hasn’t been charged in interest counts as a gift) 
• paying someone’s school or university fees.

This means that the restrictions that apply to giving gifts will apply to these situations too. Unless the deputyship order specifically authorises you to do any of these things, you will need approval from the Court of Protection before you can do any of them on the person’s behalf.

If you are unsure whether you can make a gift, you can ask the Office of the Public Guardian for guidance. If you want to make a gift that is not allowed by your deputyship order, of if you are concerned that its value may not be reasonable, the Court of Protection will need to approve it.

Remember to keep a record of any gifts you make. You will need to include these in the annual accounts you submit to the Court of Protection.

When acting as someone’s deputy, you can claim for certain expenses, as long as they are reasonable. People often don’t claim back expenses for a variety of reasons, but no one should be left out of pocket for acting as a deputy. If you are acting on behalf of a friend or relative, they probably wouldn’t want you to pay these expenses yourself.

You can only claim for certain expenses when they are for the purposes of performing your role as a deputy. This could include:

• postage costs
• car parking tickets
• travel expenses that you’ve had to pay in order to carry out your role as a deputy.

You cannot charge for travel costs for a general visit.

It’s worth knowing that you can’t charge for the time that you spend carrying out your deputy role. Only professional deputies, such as solicitors or accountants, can do that.