On February 13, 2023, the updated Public Guardian deputyship standards and supporting instructions for lay, professional, and public authority deputies were published. The revised standards simplify the earlier ones from July 2015 while also introducing new duties that all deputies must be aware of.
The guidelines are clear that the Public Guardian expects Public Authorities and professional deputies to have a higher degree of technical knowledge and skill than lay deputies, and that would seem completely appropriate. Deputies should be aware that the 2023 requirements make it very apparent that those professional deputies who do not follow these new standards risk being the target of a Court of Protection Application seeking their dismissal from their position as deputy.
The most significant change however is that the refreshed standards now apply to lay deputies. They are not, however, a completely new set of standards. They build upon those already in place and remain aligned with the Mental Capacity Act.
So let’s have a look at how the deputyship standards have changed between 2015 and 2023. For the purposes of this piece, we shall focus on the new (and extended) responsibilities which apply only to professional deputies.
Standard 1: Deputyship Obligations
1b) You must meet the obligations conferred by your deputyship Order and not exceed your authority.
Although this may appear to many to be an obvious standard, its inclusion in the new standards guarantees that all deputies are not only aware of their authority and obligations under the order, but also that they keep this under regular review to ensure that no decisions are made in excess of the authority transmitted by the Court of Protection.
This also influences a new standard (1g) requiring all Deputies to file the proper court petitions applications where permission is needed for the Deputy to operate outside of the scope of their delegated authority or to amend the Deputyship Order.
1c) You must complete a deputyship report and submit it to the OPG when requested to do so, usually on an annual basis.
This is yet another standard that Deputies might have anticipated to be included in the 2015 standards, but the fact that it is now a requirement signals that the OPG may be seeking to crack down on Professional Deputies who don’t submit their reports accurately and on time. At the Professional Deputies Forum Conference in 2021, the public guardian at the time, Nick Goodwin, addressed this issue and warned deputies that the OPG would be paying closer attention to it.
1d) OPG Supervision fees must be paid on time
Again, this is a standard that all professional deputies should be aware of. Whilst I am sure all professional deputies are adhere to this standard, its inclusion as a new standard signals that the OPG is more likely to scrutinise this area. By preventing resources from being used to pursue deputies for not paying supervision fees on time, this should have an administrative benefit for the OPG.
1e) Ensuring appropriate security is in place
The revised 2023 Deputyship Standards go beyond the 2015 Deputyship Standards in the accompanying guidance document released by the OPG. The guidance confirms that all professional deputies must get professional indemnity insurance and follow the PII guidelines set forth by their regulatory bodies.
Additionally, whilst establishing their PII, Deputies must take into account the potential collective risk to P in accordance with the factors outlined by Judge Marshall in Baker v. H & Anor [2009] EWHC B31.
1f) Adhering to fiduciary duties
This criteria was part of the 2015 Deputyship Standards, but in light of the Re ACC and Others [2020] ECOP case, the OPG has now included the case’s conclusions into the new Deputyship Standards.
The updated standard and related advice go even further in requiring Deputies to ensure that safeguards are in place to prevent both apparent and real conflicts of interest. All Deputies should pay close attention to this rule in order to uphold the integrity of their firm’s business practises as well as the profession and area of law in which they practice.
1h) Consider whether a deputyship is still required
According to this standard, a Deputy should assess whether a Deputy is still required if P’s circumstances change. Whilst it has always been good practice to do so, it is now mandatory to inform your Supervision case manager if P passes away as well as if you plan to request to have your deputyship discharged.
1i) Informing OPG promptly of any changes in the responses provided in the COP4
This is a new but crucial requirement that compels you to alert your supervision case manager if any of the details you provided changes. This includes becoming aware of any actual or apparent conflicts of interest that may affect your function as deputy, particularly those that cannot be resolved using the mechanisms outlined in Re ACC and Others [2020] ECOP.
According to this standard, the OPG will be particularly conscious of conflicts in the future and will work to resolve them through supervision. As a result, it is advised that all deputies think about and reflect on these obligations as soon as possible.
Moreover, you need to inform your supervision case manager of any changes to yours or P’s contact information. This standard also reaffirms that if a deputy decides to resign, they must make suitable arrangements for a replacement deputy. It also serves as a reminder that because deputies are appointed until discharged, they are required to think about how cases would be handled after they leave their positions.
Standard 4: Financial Management
4a) Checking claims and payments are up to date
It is now stated that a Deputy must apply for any benefits for which P is qualified within three months of receiving the deputyship order. The revised guidelines maintain the requirement to conduct yearly reviews.
4b) Separating funds
This standard encompasses the existing obligation to ensure funds are kept separate and that an account is open in P’s name but goes further to ensure that Solicitor Professional Deputies must ensure that they are managing funds in adherence to the Solicitor’s Accounts Rules.
Standard 5: Financial Record Keeping
5a) Keeping financial records up to date
According to this, deputies are required to preserve records of all financial transactions made on P’s behalf, including invoices and receipts, as well as to make note of all key financial decisions. Deputies will note that when submitting the Deputyship report, it is expected that they include statements regarding financial decisions as well.
5b) Showing how financial decisions are made and relevant factors considered.
This standard again ensures that all significant financial decisions are made in the best interests of P and that the process is free from any conflict of interest.
Standard 6: Property Management
One of the greatest differences between the deputyship standards from 2015 and the standards from 2023 is that the property obligations are now described in the OPG Deputy Standards: Guidelines for Professional Deputies instead of being listed out.
Standard 8: Additional Obligations
8c) Informing OPG promptly of any ongoing investigation or proceedings
Deputies are now required to notify the Supervision case manager if either P or they are the subject of a criminal investigation or legal action. All deputies will need to be aware of this important change, which will take effect immediately.
The Professional Deputies Forum questioned this specific criterion during conversations with the OPG on behalf of their members:
Was the OPG expecting to be kept informed at all times during a criminal investigation? (including should either P or the Deputy be charged, convicted, and sentenced)
Although this is not specified in the standard or the guidance, the OPG indicated that it would be necessary. According to the OPG, they would prefer to be kept informed at every stage of both criminal and civil investigations.
8d) Informing the OPG of concerns about other deputies
According to the new standard, you are required to communicate any concerns you have about the behaviour of another deputy, including any in your own firm, to your Supervision case manager.
Another important change is that now deputies must essentially “whistleblow” to the OPG any concerns they may have about the behaviour of another deputy. After the Professional Deputies Forum raised this concern with the OPG, it seemed that further guidance may be needed in the future, but for the time being, concerns should be voiced, especially if the deputy is aware that the deputy with whom they have concerns currently handles other deputyships.
Jessica Jarvis 
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