On guard

On 4 August 2011, the Office of the Public Guardian launched a call for evidence on the appointment of not-for-profit organisations as deputies. The consultation, which closes on 27 October, has considerable potential implications for solicitors who practice in the field of mental capacity and who act as deputies.

Many incapacitated persons have relatively straightforward affairs. The Office of the Public Guardian believes that, in these straightforward cases, it would be more appropriate for the person's affairs to be managed by a deputy who is not a solicitor and whose charges would therefore be lower. The Office of the Public Guardian has also expressed the view that charities are best placed to provide the soft skills, such as advocacy and support services, that people who lack capacity need, and could provide deputyship as part of their package of services.

The Office of the Public Guardian first explored the possibility that not-for-profit organisations could provide deputy services last year when it carried out its campaign to recruit a new panel of deputies. This had a low response rate from not-for-profit organisations. The call for evidence is aimed at finding out how the Public Guardian can attract not-for-profit organisations to provide deputyship services. There appears to be a move to shift deputyship services away from solicitors (who are perceived as more expensive), and local authorities, and towards the not-for-profit sector, in line with the government's Big Society agenda.

There appears to be considerable political motivation for the paper. If not-for-profit organisations provided deputyship services in place of local authorities, this would cut public sector costs. At present, local authority deputies are paid fixed costs for their services. As the authorities' actual costs of administering an incapacitated person's affairs are likely to be higher than the fixed costs, the government is effectively providing the services at a loss and would have to recoup this from its general budget. In addition, if deputyship services were moved away from the public sector, local authorities would be able to cut staff costs as well.

Implications for solicitors

The call for evidence presents a simplified version of the realities of deputyship. Many incapacitated persons have complex financial affairs, and benefit from the input of a legally qualified person in administering those affairs, someone who can manage them in an efficient and cost effective way. Even where a person has relatively simple affairs, a legal professional often has the experience and contacts to help maximise the value of the assets.

In addition, the provisions of the Mental Capacity Act 2005 are complex. A solicitor deputy should be able to spot situations where it was in the best interests of an incapacitated person to make a statutory will, for example. In a complex situation, a not-for-profit deputy may have to take advice from a solicitor, minimising any cost saving to the incapacitated person.

Pushing deputyship services away from solicitors to not-for-profit organisations has potential implications for solicitors in terms of their fee income from mental capacity work. This could have a knock-on effect on other practice areas, in particular property and private client. Not-for-profit deputyships also present opportunities for those solicitors who are able to take them. As shown above, not-for-profit organisations are unlikely to be in a position to undertake all of their deputy-ship work in house. There is therefore a role for solicitors in advising not-for-profit deputies on those areas which are outside their expertise.

The call for evidence is therefore something that all solicitors who practise in this area should be aware of. It is too soon, however, to sound the death knell for solicitor deputies. Even if not-for-profit organisations are interested in providing deputyship services, which is by no means certain after their lukewarm response to the panel recruitment last year, their involvement presents opportunities as well as challenges for the mental capacity solicitor.