Why does the OPG supervise Deputies?

It is the statutory responsibility of the Public Guardian to supervise and regulate the conduct of Deputies in carrying out their duties. The Public Guardian has a duty to ensure that the decisions made by the Deputy are in accordance with the Code of Practice, and that the Deputy has acted in the best interests of the person lacking capacity.

The Mental Capacity Act (the Act) provides a statutory framework empowering people to make decisions for themselves as far as is possible and to protect vulnerable people who may not be able to make all their own decisions. The Act covers major decisions about people’s property and affairs, as well as everyday decisions about daily spending.

When making decisions, a Deputy must have regard to the Code of Practice which supports the Act and provides guidance and information for those working with and/or caring for adults who lack capacity to make decisions, including family members, professionals and carers. It sets out the responsibilities of the Deputy when acting or making decisions with, or on behalf of, individuals who lack the capacity to do so themselves.

The Mental Capacity Act and the Code of Practice are available to view or download from the OPG website.

What does supervision involve?

The OPG carries out an assessment to decide the level of supervision appropriate to the circumstances of the case. More details about this assessment process and the criteria which are used can be found in section 3 below. We will then write to advise you of what will be required of you. This may involve any or all of the following:

  • Sending reports to the OPG in accordance with any directions of the Court;
  • A Court of Protection Visitor visiting both you and/or the person whose affairs you have been appointed to manage in order to ensure that the Deputyship is working for both of you and that you are making decisions in the best interests of the person;
  • Regular contact with you and with others with an interest in the person's welfare.

If you have been allocated a close (type I) or intermediate (type 2a) supervision level we will provide you with information about the casework team who will contact you. They will manage your supervision plan and can be contacted for advice and support. If your case has been assessed as needing a light touch (type 2) or minimal (type 3) level of supervision, support and assistance will be available from the OPG Contact Centre.

The only exception to this is if you are a Personal Welfare Deputy who has been allocated a type II supervision level, in which case you will also be supported by the casework team.

The type of supervision you receive will be reviewed regularly to check that it is still relevant to your circumstances. We may allocate a higher or lower supervision level if we feel that it is appropriate. If the supervision level does change we will write and inform you. You can also contact us if circumstances change and you would like us to review the level.

More detailed guidance on supervision is available in the booklet “A Guide To Supervision” (OPG 507).

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What records should I keep?

You should keep a record of any decisions you make as a Deputy. For example, if you make a major investment, alter the care provision or decide that the person whose affairs you manage should live elsewhere. You should record how you reached the decision, what you took into account and whom you consulted.

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What reports do I have to provide to the Public Guardian?

Your Court Order may specify that you must complete a report for the Public Guardian and how often this is required. The completion of the report helps the Public Guardian supervise your Deputyship.  Reports are normally called for annually, but may be more frequent in some cases. The report should record all decisions you have made on behalf of the person lacking capacity, including financial and personal welfare decisions where appropriate.

A report from a Property and Affairs Deputy will include a record of money received and payments made on behalf of the person whose affairs you have been asked to manage during the period of the report.

A Personal Welfare report will ask for information about the person’s health and welfare and any decisions relating to it.
Where possible, you should keep all supporting documents. This includes receipts for money spent, bank statements and correspondence, letters and reports from health agencies or social services.

We will let you know when a report is due and provide a form which sets out what is required.

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What else is part of supervision?

We may ask you to provide specific information if this is necessary to satisfy the Public Guardian that you are discharging your duties as a Deputy and managing the affairs of the person lacking capacity. For example, we may request that you provide more information about a decision or decisions you made, or provide supporting documents about a financial transaction or a health care decision.

We may also contact third parties for more information, for example social services or health authorities to request copies of the health and social care records of the person lacking capacity, or registered care homes to request copies of care records.

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How is the supervision level assessed?

Once the Court of Protection has issued an Order appointing you as a Deputy, the OPG carries out a detailed assessment of the circumstances of the case in order to decide which level of supervision is appropriate.

There are four levels of supervision:

  • Close (type 1).
    This is the highest level of supervision and will generally be used where there are complex or protracted issues to be resolved, where there is a formal investigation being carried out into the conduct of the Deputy or where an application is being made by the Public Guardian to discharge the Deputy for a failure to carry out the terms of the Order or comply with the requirements of the Act or the Code of Practice.
  • Intermediate (type 2a)
    This level was introduced on 1 April 2009. It will be used to enable us to offer a higher level of advice and support for lay Deputies who are newly appointed, and who often need guidance in the early months of their appointment. We will also move cases into this category from light touch supervision if the Deputy needs a higher level of advice and support for a period of time due to a change of circumstances, or if there are delays in providing financial reports or paying fees. This new level will also allow us to move some cases which are currently in close touch supervision although they do not require an investigation or complex casework intervention, for example where there is a specific clause in the Order which requires supervision.  This supervision level does not apply to Personal Welfare Deputyships.
  • Light touch (type 2)
    This level is for cases which have more than £16,000 in assets and where there are no factors requiring an intermediate or close level of supervision.
  • Minimal (type 3)
    This level is for cases which have less than £16,000 in assets and where there are no factors requiring an intermediate or close touch level of supervision. This supervision level does not apply to Personal Welfare Deputyships.

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The supervision regimes

Property and Affairs Deputies

 If you have been appointed as a property and affairs Deputy you are likely to be allocated to a Type I level of supervision if ANY of the following factors apply:

  • Concerns have been reported to the OPG about your management of the funds of the person whose affairs you have been appointed to manage, and as a result we consider that for now we need to monitor your decision-making.
  • There is a high level of sensitivity around decisions or wider interest in this case which may put pressure on you when making decisions e.g there is significant third party interest.
  • There is a high level of conflict with family members or third parties.
  • There is information on the Deputy’s declaration (COP4) which raises concerns about your possible management of the person’s affairs e.g. you are an undischarged bankrupt or have been declared bankrupt in the past.
  • There has been a recent investigation in this case or into your Deputyship where allegations were substantiated or concerns remain.
  • You have financial interests that directly conflict with the person whose affairs you have been appointed to manage, for example, you are not closely related but you live rent-free in property that they own.
  • You are under investigation in respect of your handling of another case/s, for example regarding financial mismanagement.
  • The Deputyship report is outstanding and it requires escalation from intermediate supervision.
  • There are concerns about outstanding payments  (the security bond, OPG fees care home fees or other expenses for the person whose affairs you manage) and a close supervision level is now required.
  • A casework issue has not been resolved in intermediate supervision and the case needs to be escalated to a close supervision level, for example where there is frequent or repeated failure to respond to contact, or enquiries have confirmed that you have no contact with the person whose affairs you manage.
  • A combination of the factors for intermediate supervision level now apply, which require escalation to close supervision.

You are likely to be allocated to a type 2a level of supervision if one or more of the following factors apply:

  • You are a new and inexperienced Deputy who is not the parent or spouse/civil partner of the person whose affairs you manage.
  • There are requirements in your Deputyship order which need further monitoring by the OPG.
  • There is a damages award which has settled or a substantial interim payment has been made, the funds have been received and it is necessary to ensure that the appropriate systems are in place for the person’s care and funding.
  • The financial information is incomplete or there is the possibility that additional funds will become available e.g entitlement under a will, sale of a property.
  • There was an objection to the appointment and a professional Deputy or local authority has not been appointed.
  • The person whose affairs you manage lives in an unsupervised setting with minimal support and little contact with others.
  • There is evidence that you do not maintain regular contact with the person whose affairs you manage.
  • There is evidence of some family/third party conflict.
  • There is a need for casework intervention e.g you wish to step down as Deputy and an immediate replacement cannot be found.
  • There is an identified need for ongoing advice and support e.g there are delays in paying the security bond, OPG fees, care home fees or other payments.
  • The OPG consider that the level of the security bond has been set too low giving rise to an unacceptable financial risk to the person whose affairs you manage, and there is a need to apply to court to have the security level reviewed.
  • A Court of Protection Visitor or a third party has reported concerns to the OPG.
  • You are more than 4 months late in lodging the annual Deputyship report.
  • There are concerns arising from the annual Deputyship report e.g disproportionate expenditure, inadequate reporting or insufficient evidence supplied.
  • You have failed to reply to contact from the OPG.
  • The person whose affairs you manage requires a high level of support and advice, presenting significant challenges for you or requiring support from the OPG.

You are likely to be allocated to a Type 2 level of supervision if ALL of the following factors apply:

  • The value of the assets you have been appointed to manage is between £16,000 and £150,000.
  • You are a professional Deputy (e.g. a solicitor or local authority Deputy), or you are the spouse, civil partner or parent of the person whose affairs you have been appointed to manage.
  • There was no objection to your appointment as Deputy.
  • There are no other factors that would mean a different level of supervision would be appropriate.

You are likely to be allocated to a Type 3 level of supervision if the following applies:

  • The value of the assets you have been appointed to manage are £16,000 or less and there are no other factors that would mean a different level of supervision would be appropriate.

Personal Welfare Deputies

If you have been appointed as a Personal  Welfare Deputy you are likely to be allocated to a Type I level of supervision if ANY of the following factors apply:

  • There is an identified risk around poor decision making or pressure being exerted on you from others, e.g. someone has stated that they are not happy with decisions you are making about the person's care.
  • The person you will be making decisions on behalf of has been, is likely to be, awarded 'damages' and you are a relative. In this situation we need to ensure that appropriate health services and care packages have been set up and are operating effectively.
  • The Court has specifically requested that you are supervised closely and the OPG is satisfied that the criteria for high level supervision confirms this level of supervision is needed.
  • There is a high level of sensitivity around decisions (e.g. decisions could affect maintenance of life, or there is a situation where wider interest e.g. from the media, may put pressure on you when making decisions)
  • You are a relative and there is a rapidly changing or serious health or welfare situation which may result in you having to make one, or a series of, potentially difficult decisions (e.g. a rapidly degenerating condition which requires numerous changes to the person's environment, treatment or care regime)
  • There is a significant family dispute/conflict over decisions in relation to health & welfare, or your appointment as the Deputy, which is likely to cause you difficulties in carrying our your responsibilities as a Personal  Welfare Deputy
  • The person you are making decisions on behalf has had erratic, unstable or changing relationships with others (including health & care agencies), giving rise to issues about continuity/consistency of care and decision-making about them, presenting significant challenges for you.

You may be allocated to a Type I or 2 level of supervision if ANY of the following factors apply:

  • You have limited contact with the person you will be making decisions on behalf of, or are geographically remote possibly presenting issues with managing their health and welfare
  • There is a significant family dispute over decisions in relation to  property and affairs which is likely to cause you difficulties in carrying our your responsibilities as a Personal  Welfare Deputy
  • There is a complexity of health and welfare issues that may or may not be ongoing
  • There is evidence that you, due to your own decreasing abilities, may yourself become incapacitated or otherwise in the near future causing you to experience difficulties in performing your Deputyship responsibilities
  • Joint and several deputies have been appointed and there is a need to ascertain if decision-making is operating effectively.

Personal Welfare Deputies will not be allocated a Type 3 supervision level.

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What if I do not agree with the supervision regime assigned?

If you do not agree with the decision which has been made about the supervision level you can ask us to review the decision. You must do this within 14 days of being notified of the decision.

If you would like to know more about how the decision was reached, you can ask for full written reasons for the decision within 14 days of being notified of it. You will then have a further 14 days to ask for a review of the decision.

Your request for a review must be supported by a statement of the grounds on which you are requesting it together with any documentation or evidence you wish to submit in support of your request. The Public Guardian will consider your request and notify you of his decision.

If you remain unhappy with the decision you can request an independent review of the decision. If you do so, the Public Guardian will ask the Independent Adjudicator to review the decision. Details of how to do this will be in the letter we send you.

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