What is mental capacity and when does someone lack mental capacity?
Mental capacity is the ability to make decisions for yourself.
In England and Wales, under the Mental Capacity Act 2005, you are presumed to have mental capacity unless proven otherwise. Someone lacks mental capacity if they are unable to make decisions for themselves. To identify whether someone lacks mental capacity:
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they need to have an impairment of the mind or brain as a result of an illness (eg dementia) or external factors (eg alcohol, drugs or trauma), and
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the impairment must cause them to be unable to make a specific decision when they need to
In Scotland, under the Adults with Incapacity (Scotland) Act 2000, someone lacks capacity if they are unable to make decisions for themselves because they:
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have a mental disorder, or
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are not able to communicate because of a physical disability
For example, people may lack mental capacity if they have dementia, a severe learning disability or a brain injury.
What are deputies and guardians?
Deputies (in England and Wales) and guardians (in Scotland) manage the affairs of people who lack mental capacity.
There are two types of deputies:
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property and financial affairs deputies - who handle practical matters such as paying bills and managing pensions
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personal welfare deputies - who make decisions about medical treatment and care arrangements (note that you cannot become someone’s personal welfare deputy if they’re under the age of 16)
There are three types of guardians:
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welfare guardians - who make decisions about medical treatment and care arrangements
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financial guardians - who handle practical matters such as paying bills and managing pensions
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combined financial and welfare guardians - who handle both welfare and financial matters
What is the difference between attorneys under powers of attorney, deputies and guardians?
Lasting powers of attorney (LPAs) and Scottish powers of attorney allow the appointment of an 'attorney' to help an individual manage their affairs in case they lose their mental capacity in the future. They also fall into similar categories: LPAs for health and care decisions and LPAs for financial decisions in England and Wales, and Continuing Powers of Attorney (CPA) and Welfare Powers of Attorney (WPA) in Scotland. Attorneys under a power of attorney are appointed by an individual while they have mental capacity.
Deputies and guardians are not appointed by the individual lacking mental capacity. Instead, they are appointed by the Court of Protection (in the case of deputies) or by the Sheriff Court (in the case of guardians) in the situation that an individual has already lost their mental capacity and did not make a relevant power of attorney.
What are the responsibilities of a deputy or guardian?
Deputies and guardians are responsible for either the property and financial affairs of the individual, or their personal welfare, depending on the type of deputyship or guardianship. They are responsible for making decisions on behalf of the individual lacking mental capacity - or helping them to make a decision - taking into account the level of their mental capacity at the time. They must always ensure that all decisions are in the best interests of the individual.
Who can apply to be a deputy or guardian?
Deputies and guardians are normally close relatives or friends of the individual. They must be 16 or over and there can be more than one deputy/guardian. In England and Wales, where there is more than one deputy, the deputies can either act:
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together (also known as ‘joint deputyship’) - ie means all the deputies have to agree on the decision
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separately or together (also known as ‘jointly and severally’) - ie the deputies can make decisions on their own or with other deputies
In England and Wales, anyone who wants to become a deputy needs to apply to the Court of Protection and pay relevant fees. In Scotland, anyone who wants to become a guardian needs to apply to the Sheriff Court and pay relevant fees.
For more information, see the Government’s guidance on the application process and fees when applying for deputyship in England and Wales. Read the guidance provided by the Office of the Public Guardian in Scotland (OPG Scotland) for the application process and fees when applying for guardianship in Scotland.
What happens after a deputyship or guardianship application?
England and Wales
There is a 14-day wait following submission of an application to become a deputy to allow any relevant parties to object. The Court of Protection will then approve or reject the application and possibly hold a hearing if further information is required or if there is an objection.
If the application is successful, the newly appointed deputy will be sent a 'court order'. This allows a personal welfare deputy to start acting on behalf of the individual straight away. However, a property and financial affairs deputy will need to pay a security bond first.
Scotland
The applicant must lodge their application with the Sheriff Court in the area in which the adult lacking capacity lives. A copy of the application and reports will then be sent to all interested parties, including OPG Scotland. Once OPG Scotland has received the report and read through it, it will contact the sheriff informing them of any observations.
If the applicant is applying to become a financial guardian, OPG Scotland will also write to them and send them a leaflet introducing themselves and explaining the guardian’s duties once appointed.
If the application is successful, the newly appointed guardian will be sent a court order setting out the powers granted. The order is also sent to OPG Scotland who will register the appointment on receipt. The applicant will then be issued with a certificate of appointment and further copies of the court order.
If the applicant applied to be a welfare guardian, OPG Scotland will notify the relevant local authority and the Mental Welfare Commission. It is their duty to supervise the guardian’s appointment and provide guidance.
If the applicant applied to be a financial guardian, OPG Scotland will issue an inventory of estate and management plan forms along with the certificate appointment and copies of the court order. Until OPG Scotland has approved the guardian’s management plan, the guardian’s powers will be limited.
The sheriff may also set a caution. If this is the case, OPG Scotland will not register the applicant’s appointment until the bond of caution is in place.
What are the rules around accounts, gifts and expenses?
Comprehensive accounts must be kept by property and financial affairs deputies (eg bank statements and receipts).
Certain expenses (eg phone calls, postage and travel costs) can be claimed for duties carried out in the course of being a deputy or guardian. However, a detailed report must be kept and the Court of Protection or OPG Scotland may ask for repayment in the case of any expenses which are deemed unreasonable. Note that deputies cannot claim for:
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travel costs for social visits
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time spent carrying out deputy duties (unless the deputy is a professional deputy, such as a solicitor)
The ability to buy gifts or give gifts of money on behalf of the individual (eg donations to charities) will be detailed in the court order. All gifts must be reasonable and deputies and guardians must make sure that any gifts do not reduce the level of care provided. For more information, see the Government’s guidance on buying and giving gifts for deputies and OPG Scotland’s guidance on buying and giving gifts for deputies.
How are deputies supervised and what is the annual report?
Deputies and guardians are supervised by the Office of the Public Guardian (OPG) and OPG Scotland. This may occasionally include supervision visits.
Deputies and guardians must write a report each year which explains any decisions they have made as a deputy or guardian. For more detailed guidance on annual accounts, see the Government’s guidance for deputies or OPG Scotland’s guidance for guardians.
How can deputyship or guardianship be changed or ended?
In order to renew, change or end a deputyship in England and Wales, an application must be submitted to the Court of Protection. Read the Government’s guidance on renewing and changing or ending a deputyship for more information.
In order to end a guardianship in Scotland, an application to end a welfare guardianship must be submitted to the Mental Welfare Commission (using Form AWI 11) or the local authority in which the adult lives (using Form AWI 12). An application to end a financial guardianship should be submitted to OPG Scotland using the Discharge Application Form. If welfare or financial powers are being recalled due to the person having regained capacity then a medical opinion is also required. For this, you must use Form AWI 13.
For more information, see the Scottish Government’s guidance and OPG Scotland’s guidance on changing, renewing and discharging a guardianship.
