When deputy meets executor: Supporting people in court who lack mental capacity

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In short, a deputy can make decisions for someone in court who lacks capacity. But what should happen to the deputy’s role on the death of the vulnerable individual? It is stated that their duties will come to a natural end but this is not always the case as Elizabeth Young, partner at Roythornes Solicitors, explores.

What is the role of a deputy?

A deputy may be appointed by the Court of Protection to make decisions for an incapacitated person (‘P’) during their lifetime, largely in relation to their property and finances. Each deputy must act in line with the fundamental principles of the Mental Capacity Act of 2005 and in the best interests of ‘P’. The natural end to the appointment will come with the death of ‘P’ but this may not be the end of the story for the deputy.

This article may be of guidance to deputies both during the course of a deputyship, and following the death of ‘P’ to ensure that delay and conflict are minimised.

The authority of a deputy ends immediately on death, as will the responsibility of the Office of the Public Guardian to supervise or, importantly, support the deputy. However, the deputy still has a responsibility to report to the deceased’s personal representatives and discharge any final responsibility.

Although ‘P’ is the priority and the deputy must always act in their best interests some residual responsibility must extend to the beneficiaries of ‘P’s’ estate. It may be worthwhile keeping half an eye on the end game and consider who you may be accountable to for your actions as deputy upon the death of ‘P’.

When deputy meets executor

At the outset of any appointment a deputy must establish the terms of any Will, or if none can be found, what impact the rules of intestacy will have. In either case the deputy should consider whether the terms of the Will remain appropriate for ‘P’ or whether a change might be beneficial for all involved in the estate? Are the executors alive? Are they suitable? Are they still speaking to ‘P’ and to each other?

The process can run much smoother if the deputy is also an executor as the move can provide a level of consistency. ‘P’ may have capacity to make the amendments to update their Will themselves or the deputy may apply for an order from the Court of Protection to amend or create a suitable Will for ‘P’ (a Statutory Will’).

If a house and/or its contents need to be sold, the deputy should consider - as a secondary issue (to ‘P’s best interests) - who is named as a beneficiary under the terms of the Will. Any contrary decision should be made clear in your annual report to the Office of the Public Guardian.

The deputy may also need to undertake a review of ‘P’s investments. Personal investment policies and attitude to risk vary wildly between individuals and what may be considered in ’P’s best interests, may not always sit so comfortably with those who stand to benefit under the Will.

A client case study

Let me provide an example of where this has taken place previously with a case I’ve been involved in:

‘D’ was an 87-year-old gentlemen with advanced dementia living in long-term residential care. ‘D’ had considerable cash reserves held with a high street bank earning a pitiful rate of interest and being exposed to risk if the bank went pop.

Upon my appointment as deputy for ‘D’ I obtained an investment review focussed on the investment of these funds and was poised to proceed when ‘D’ was suddenly taken ill (he was normally in great physical shape). I suspended plans to follow the advice largely because whilst the long term prospects for the investments were preferable, the initial set up fee was significant.

‘D’ passed away still with the cash safely in the bank and no fees having been incurred. Although I had kept the son informed of progress - who was the beneficiary when ‘D’ died and he supported my actions during his father’s life - the son still grumbled when ‘D’ passed away that I should have gone ahead with the investments. The market had been strong and the investments may have outperformed the cash for a period, but there were of course no guarantees.

To summarise ... 

Throughout a deputyship, the deputy is required to keep full accurate records of monies and decisions made and to account on an annual basis to the Office of the Public Guardian with a fixed form of accounts. On the death of ‘P’ the deputy should agree with the personal representatives whether they wish to receive a final account from the beginning of the last period until the date of death or whether they are happy to accept a copy of the last set of accounts already prepared.

The deputy should- once a copy of the death certificate has been provided - give a full set of information detailing all assets, liabilities, sources of income and expenditure and provide the personal representatives with all of the available information required to administer the estate. Of course, if the deputy and the executor are one and the same, then the work required is reduced and the deputyship and executors can merge seamlessly from one to another.

About the author

Elizabeth Young has been a member of the Court of Protection’s panel of Professional deputies since its inception in 2002. Elizabeth also acts as executor and advises personal representatives on their duties and responsibilities.

For more information visit Roythornes Solicitors or follow @roythornes on Twitter.

Tags: executor deputy mental capacity

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