The 13th February 2023 saw the publication of the new OPG deputyship standards and accompanying guidance for lay, professional and public authority deputies. The new standards streamlined the July 2015 standards as well as creating new obligations that all Deputies ought to be aware of.
The standards set out clearly that the Public Guardian expects Public Authorities and professional deputies to have a higher level of technical knowledge and expertise than lay deputies, and that would seem entirely appropriate. Deputies ought to be aware that it is clearly set out within the 2023 standards that professional deputies who fail to adhere to these new standards may be on the receiving end of a Court of Protection Application seeking their discharge as deputy.
So lets have a look at the changes between the 2015 and 2023 deputyship standards. For the purpose of this article we will focus on the new (and extended) obligations applicable to professional deputies only.
Standard 1: Deputyship Obligations
1b) You must meet the obligations conferred by your deputyship Order and not exceed your authority.
Whilst this may seem to many an obvious standard its inclusion within the new standards ensures that all deputies are not only aware of their authority and obligations within the order but requires them to also keep this under regular review to ensure that any decisions are not taken in excess of the authority conveyed by the Court of Protection.
This also feeds into a new standard (1g) requiring all Deputies to make appropriate court applications where authority is required for the Deputy to act outside of their conferred authority or to vary 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.
You must make sure that all information provided on the deputyship report is accurate and the report includes details of any significant decisions made on behalf of P.
Again, this is another standard which Deputies would perhaps have expected to see in the previous 2015 standards however, its inclusion suggests that the OPG may be looking to tighten up on Professional Deputies who fail to provide their reports accurately and on time. This was a theme that then Public Guardian, Nick Goodwin mentioned at the PDF Conference in 2021 and advised Deputies then that the OPG would be becoming more alive to.
1d) OPG Supervision fees must be paid on time
This is a standard which again all professional deputies ought to be mindful of, and whilst this is something that all professional deputies are likely (ought) to be meeting, its inclusion as new standard suggests that this is an area where that the OPG are more likely to scrutinise. This will hopefully have an administrative benefit to the OPG by ensuring resources are not expended in chasing deputies for a failure to pay supervision fees on time.
1e) Ensuring appropriate security is in place
Whilst this was in the previous 2015 Deputyship Standards, the new 2023 standards go further in the accompanying guidance which confirms that all professional deputies to take out professional indemnity insurance and in doing so adhere to the guidance on PII provided by their regulatory bodies.
Furthermore, Deputies must consider the potential aggregated risk to P in line with the factors described by Judge Marshall in Baker v H & Anor [2009] EWHC B31 (Fam) (15 October 2009) (bailii.org) when incepting their PII.
1f) Adhering to fiduciary duties
This standard featured in the 2015 Deputyship standards (3b(6)) however, following the case of Re ACC and Others [2020] ECOP the OPG have enshrined the findings of this case in the new Deputyship Standards.
The new standard and accompanying guidance go further in mandating that Deputies must make sure that measures are in place to avoid both perceived and actual conflicts of interest.
This is an important standard for maintaining the integrity of the profession and the area of law in which deputies practice and one of which all Deputies ought to be extremely mindful, especially when considering their firm’s commercial arrangements.
1h) Consider whether a deputyship is still required
This standard sets out that a Deputy ought to consider whether a deputyship is still required if P’s circumstances change.
There is now an obligation to notify your Supervision case manager if you are intending to apply to discharge your deputyship and also if P dies.
1i) Informing OPG promptly of any changes in the responses provided in the COP4
This is a new but very important standard and states that you must advice your Supervision Case Manager if any of the information you provided changes. This includes you become aware of any actual or perceived conflicts of interest which could impact your role as deputy, especially those that cannot be resolved using the processes set out in Re ACC and Others [2020] ECOP.
This standard appears to set the tone for the coming years that the OPG are going to be extremely alive to conflicts and seek to manage these in Supervision. Therefore, it is recommended that all deputies consider and reflect on these requirements at the earliest opportunity.
In addition, you must make your Supervision Case Manager aware of any changes int eh contact details for yourself as Deputy or P.
This standard further confirms that Deputies must make suitable provision for a replacement deputy if they decide to step down and reminds deputies that they remain appointed until discharged and therefore there is an obligation to consider how cases would continue to be managed on leaving a job.
Standard 4: Financial Management
4a) Checking claims and payments are up to date
It is now set out that a Deputy must ensure that they have applied for any benefits for which P is eligible within 3 months of receiving the deputyship order. The obligation to carry out annual reviews is maintained in the new standards.
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.
The OPG provided a practice note on Solicitor client accounts which can be found here:
Solicitor client accounts: Public Guardian practice note – GOV.UK (www.gov.uk)
Standard 5: Financial Record Keeping
5a) Keeping financial records up to date
This states that deputies must keep receipts and invoices for all financial transactions carried out on behalf of P as well as recording all significant financial decisions.
Deputies will be aware that they are expected to also include statements related to financial decisions when completing the Deputyship report.
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 if free from any conflict of interest.
Standard 6: Property Management
One of the biggest changes between the 2015 deputyship standards and the 2023 standards is that instead listing out the property obligations, this is now detailed in the OPG Deputy Standards: Guidance for Professional Deputies.
Standard 8: Additional Obligations
8c) Informing OPG promptly of any ongoing investigation or proceedings
Deputies must now inform the Supervision case manager if either they or P is subject to a police investigation or civil proceedings.
This is significant change and one which all deputies will need to be aware of.
During discussions with the OPG, the PDF queried this particular standard on behalf of our members. It was queried whether the OPG expect to be updated throughout the life of a criminal investigation (including should either P or the Deputy be charged, convicted, and sentenced). Whilst the standard and the guidance do not stipulate this, the feedback from the OPG was that this would be required. The OPG’s view was that they would prefer in both criminal and civil investigations to be kept up to date throughout.
8d) Informing the OPG of concerns about other deputies
The new standard states that you must inform your Supervision case manager of any concerns you have regarding the actions of another deputy including any in your own firm.
This is another significant change and requires deputies to essentially ‘whistleblow’ and raise any concerns they have regarding the conduct of another deputy with the OPG.
Having queried this with the OPG on behalf of the PDF, the view appeared to be that further guidance may be required in due course on this however, for the time being, concerns ought to be raised especially where the deputy is aware that the deputy with which they have concerns currently manages other deputyships.
So…Same standards/different format or a new way forward for the OPG?
It is my view that these new deputyship standards are certainly a new way forward for the OPG.
There are now some very clear themes that feature throughout the new standards which suggest that supervision is likely to with a focus on:
- Adherence to strict compliance with supervision and reporting requirements,
- The management conflicts of interest
- The behaviours and actions of Deputies (and P).
As result it is important that all Deputies familiarise themselves with the new deputyship standards and the relevant guidance to ensure compliance and if in doubt, query issues with your Supervision case manager.
Useful links:
OPG Deputy Standards – GOV.UK (www.gov.uk)
OPG Deputy Standards documents – GOV.UK (www.gov.uk)
If you have any feedback please email michael.costelloe@emgsolicitors.com
