A3: Acting as a suitable person

Direct Payments Factsheet

The council is required to offer direct payments to individuals who lack the mental capacity to consent, provided there is a 'suitable person' to receive and manage the payments on their behalf. This is done when it is in the individual’s best interests to have a direct payment.

Being appointed as a suitable person

You cannot simply become a suitable person; legislation and guidance must be followed. You can discuss this with your social worker.
You must meet all the criteria set out in our policies for appointing a suitable person.
You will act as the suitable person on behalf of an adult who lacks the mental capacity to consent to receive direct payments.
You must be willing and want to act as a suitable person.
North Yorkshire Council’s Direct Payments Support Service is free and can provide support with all aspects of a direct payment. They can assist you with using direct payments, payroll services, recruiting and managing personal assistants, and undertaking DBS checks, amongst other services.

Your role and responsibilities

You must follow good practice in making decisions on behalf of the person who lacks capacity and act in their best interests.
As the suitable person you are accountable for the way the direct payments are used.
You should involve the person who lacks capacity as much as reasonably practicable, giving them as much control and independence as possible.
You agree to inform the council of any changes or difficulties, or as soon as you believe the person has regained capacity.
You will sign an agreement with the council regarding the use of the direct payments, and you must adhere to its terms.
You agree to use the direct payments to purchase and obtain the services necessary to meet the needs of the person who lacks capacity.
When making these arrangements it may involve legal responsibilities, such as employing staff.
If you employ personal assistants, you must ensure you act lawfully as an employer. Please ask the Direct Payments Support Service for the relevant factsheet.
If you use an agency, please ask the Direct Payments Support Service for advice on how to use agencies and keep safe.
If the person you represent has fluctuating capacity, during periods when they regain capacity, you must involve them as much as possible in decisions about their care and support.
You may not use the direct payment to employ an individual living in the same household without our written permission. You must open a separate direct payments bank account and provide us with the details on the bank mandate form given to you.
If you are a corporation or unincorporated body, you must ensure that the money can be shown as separate to any funds you may hold for any other person or body.
While we do not want to discourage you from acting on behalf of an individual who lacks capacity, it is important to be aware that anyone acting as a suitable person may be guilty of fraud if they dishonestly abuse their position, intend to benefit themselves, or others, and cause loss or expose the person to risk or loss.
The Fraud Act 2006 created an offence of ‘abuse of position’. This applies when someone is expected to safeguard the interests of a person but instead acts against their financial interests, which can result in a criminal offence.
If you are a corporation or unincorporated body, you must undertake disclosure and barring service record checks for any workers you use to provide services to the person who lacks capacity.

Keeping safe

The council need to be satisfied that you will undertake disclosure and barring service record checks for anyone employed to provide services for an individual. Direct Payments Support Service can provide access to a check when you request one.
You must speak with the worker from the Direct Payments Support Service who will advise when a check must be undertaken for anyone you engage in providing services.
You will be required to undertake a criminal record check if you wish to be an appointed suitable person and you are not a family member, spouse, or a friend involved in the provision of care (please discuss with your social worker).
For example, an independent care broker or solicitor not previously known to the person who lacks capacity cannot be appointed until this check has been completed.
As the suitable person, you are only responsible for making decisions about direct payments, but there are other ways support can be provided for the person without capacity. Direct payments are just one option. Please discuss the alternatives with your social worker.
If you decide you no longer wish to act as the suitable person, you must contact the council as soon as you no longer want to carry on in this role.