Court of Protection
Advice on acting as a Deputy or Attorney
Being appointed as a Deputy or Attorney is a significant responsibility. This guide explains the key principles you must follow, what you can and can't do, and where to get help if you're unsure.
Guidance for Deputies & Attorneys
If someone you care for can no longer manage their own affairs and hasn’t arranged a Power of Attorney, applying for a Deputyship is the way forward. Here’s what the process involves – and how we can help.
The five principles you must follow
Your role is governed by the Mental Capacity Act 2005, which sets out five core principles that must underpin every decision you make:
- Always assume a person has capacity unless it has been clearly established that they do not.
- Take every practical step to help someone make their own decision before treating them as unable to decide.
- Never treat someone as lacking capacity simply because they make a decision you consider unwise.
- Every act or decision made on someone’s behalf must be in their best interests.
- Always consider whether the same goal can be achieved in a way that is less restrictive of the person’s rights and freedoms.
Making decisions on someone's behalf
If the person still has capacity to make their own decisions, your role as Attorney is to support and act only when they specifically ask you to. Always encourage and enable them to make decisions for themselves wherever possible.
When someone no longer has capacity, decisions must be made in their best interests — not based on what you would choose for yourself. The Mental Capacity Act Code of Practice provides detailed guidance, but as a general rule you should consider the person’s past and present wishes, their beliefs and values, and consult with family, friends, and anyone involved in their care.
Important: Neither Deputies nor Attorneys can make a Will on someone’s behalf. If a Will needs to be created or changed and the person no longer has capacity, a Statutory Will application through the Court of Protection may be needed.
What you can and can't do
The scope of your powers depends on whether you are an Attorney or a Deputy — and the specific terms of your document or Court Order.
01
Attorneys
- Typical powers (where no restrictions apply)
- Opening and managing bank accounts
- Transferring money and paying bills
- Making investments
- Buying or selling property
02
Requires court approval
- Situations needing extra permission
- Selling property at an undervalue or to a relative
- Making significant gifts, or gifts to yourself
- Selling jointly owned property
Deputies are more stringently regulated than Attorneys.
Your powers are defined by the Court Order — always check what you’re authorised to do before acting. Deputies must keep all statements, receipts, and papers, and file annual reports to the Office of the Public Guardian.
Not sure whether you're acting within your powers?
Mistakes made by Deputies or Attorneys — even well-intentioned ones — can have serious consequences. If you’re uncertain about what you’re authorised to do, or whether a specific decision requires court approval, it’s always better to seek advice before acting.
Our Court of Protection team advises Deputies and Attorneys on their responsibilities, powers, and when to seek additional permissions.
Frequently Asked Questions
What are the five principles of the Mental Capacity Act?
The five principles are: (1) always assume a person has capacity unless proven otherwise; (2) take all practicable steps to help someone make their own decision before treating them as unable to decide; (3) never treat someone as lacking capacity simply because they make an unwise decision; (4) all decisions must be made in the person’s best interests; and (5) always consider whether a less restrictive option is available.
What can a Deputy or Attorney not do?
Neither a Deputy nor an Attorney can make a Will on someone’s behalf. Deputies and Attorneys also cannot make significant gifts without court approval, act outside the scope of their specific powers, or make decisions that conflict with the person’s best interests. Specific restrictions will also depend on the terms of the individual’s Deputyship Order or Power of Attorney document.
What is the difference between financial capacity and testamentary capacity?
These are two distinct legal tests. Financial capacity refers to someone’s ability to manage their property and financial affairs. Testamentary capacity refers to their ability to make a valid Will. Someone can lack one but retain the other — meaning that even if a person has a Deputy managing their finances, they may still be able to make their own Will.
When does a Deputy need to go back to the Court of Protection for additional permission?
A Deputy may need to return to the Court for additional authority in certain situations, including selling property at an undervalue or to a relative, making significant gifts, selling jointly owned property, or any other transaction where there is a conflict of interest or the proposed action falls outside the terms of the original Order.
What is the Office of the Public Guardian?
The Office of the Public Guardian (OPG) is the government body responsible for supervising Deputies and Attorneys in England and Wales. Deputies must file annual reports and financial accounts with the OPG. The OPG also investigates concerns about the conduct of Deputies and Attorneys.
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