MCA and the Office of the Public Guardian role
Supervision of deputies
If someone has lost capacity to make certain decisions, but did not create an LPA or EPA whilst they had capacity, an application can be made to the Court of Protection to appoint a person (‘deputy’) to make decisions, or help make decisions, on the individual’s behalf.
Deputies are accountable to the Court of Protection, and the OPG has a statutory function to supervise all deputies appointed by the Court of Protection (MCA Code of practice).
There are three types of deputies that OPG supervises:
- lay deputies – family or friend of the person
- professional deputies – individuals who are paid for their role as a deputy (e.g. solicitors or accountants)
- public authority deputies – when the court order appoints a local authority or health body as deputy
The OPG’s provides a tailored and proportionate level of supervision and support to each deputy according to their expertise and need. Deputies are supervised through annual reports submitted to OPG.
The deputyship report is a useful method for OPG to:
- Assess the current decision-making of deputies
- Look out for significant decisions they may have to make over the next 12 months which may require additional supervision or support from OPG
- Solve issues or concerns as they emerge so that assistance can be provided to the deputy to avoid further investigation or court action
Visits are another way for OPG to supervise deputies. Using a risk-based approach, OPG will direct a Court of Protection visitor to visit someone who has a deputyship court order to evaluate whether the deputy is following the MCA and acting in the best interests of the person. Public authority deputies and professional deputies are additionally subject to assurance visits to ensure that their deputyship standards are maintained.
In cases where OPG believes the deputy is neglecting their duties, and the situation has not improved after additional support has been provided by OPG, the case may be referred to the investigation team. There are four outcomes to OPG’s investigations of deputyship court orders. OPG may:
- discover that the deputy is not doing anything wrong and is acting in the best interests of the person
- provide greater supervision and support to the deputy
- ask the deputy to go to the Court of Protection for permission to take a specific action
- apply to the Court of Protection for direction, or to remove the deputy from their post
1 Reflecting on values and bias within mental capacity decision-making
2 The history and current context of mental capacity legislation and policy
3 The concept of mental capacity
4 Best interests
5 Supported decision making
6 Deprivation of liberty: human rights
7 MCA in clinical decisions for care and treatment
8 MCA and the Office of the Public Guardian (OPG) role