You’re clear on what your responsibilities are as a Deputy, but how do you make sure that the assets and well-being of the mentally incapacitated person you’re acting for are protected from the impact of any bad decisions made on their behalf? And how do you reduce your exposure to the impact of inappropriate decision-making?
How is a person who lacks mental capacity protected from financial loss?
If your Deputyship, as laid out by the Court, gives you the power to deal with the property and affairs of a mentally incapacitated person, you may be lawfully required to provide financial security for that person, in the event that your decisions result in any financial loss. There are numerous ways to do this, for example, you could open a guarantee bond, as long as it provides the level of security that the Court requires. You can verify the appropriate amount to secure by referring to your Court order, or seeking advice from your legal advisor. In general terms you will need to provide a level of security that is proportionate to the financial assets you are now in charge of.
How is a person who lacks capacity protected from abuse?
It is a criminal offence to ill-treat and/or willfully neglect any person lacking capacity. These offences apply to anyone who has any level of duty toward the incapacitated person, and this includes everyone from family and home care staff to Attorneys and Deputies. Penalties range from a fine to five years imprisonment.
Am I protected from liability as a Deputy?
If you adhere to the terms of your Court order and the laws surrounding Deputyships it is highly unlikely that you will be held legally liable. However, if you choose to act outside of your powers, even if you believe it is in the incapacitated person’s best interests, you will be liable.
If the Court decides that you have caused financial loss to the person lacking capacity they may decide to ‘call in’ the security bond, or approve the commencement of legal proceedings against you.
You can find out more about your rights and responsibilities by referring to the Mental Capacity Act 2005 - Code of Practice, or by contacting our team of Court of Protection specialists – for a free and confidential chat.