Deputyships are an important part of protecting someone who lacks capacity. The Court of Protection must appoint a Deputy for them to legally make decisions on a person’s behalf.
To become a Deputy, you must make an application to the Court, and you have certain responsibilities to fulfil. In some circumstances, you may need to appoint a professional Deputy.
If you have a loved one or family member who lacks capacity and you want to talk to a specialist Court of Protection Solicitor about becoming a Deputy or appointing a professional Deputy, our experienced team can help you.
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Personal Welfare and Property and Financial Affairs Deputies
A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of someone who lacks the mental capacity to manage them themselves.
There are two types of Deputyships:
- Personal Welfare - making decisions about health and personal welfare, including treatment options. The Deputy cannot refuse consent to life-sustaining treatment
- Property and Financial Affairs – dealing with pay their bills, selling their property or getting their pension
A Deputy can only act under a Court Order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act for the person who lacks capacity.
How Can Simpson Millar Help You?
If a loved one or family member cannot make decisions for themselves because they lack capacity, we can help you to make your Deputyship application to the Court of Protection.
Our specialist team of Court of Protection Solicitors have years’ of experience in dealing with the Court of Protection and know the process inside out. They can give you specialist help and advice with your application to make sure the Court grants the Deputyship Order so you can make decisions for your loved one.
In some circumstances, there is a need for a professional Deputy to be appointed particularly if there is a large estate.
Many of our Solicitors act as professional Deputies for those who need their help and if you need a professional Deputy to be appointed, make an appointment with one of our specialist Lawyers to talk through the process and how we can help.
Our Court of Protection Team are one of the most experienced across the country, so talk to us today.
Appointing a Deputy
A Deputyship could be needed if they lose capacity to make a decision about either their finances or their welfare and there is no Attorney in place.
You can lose capacity from a progressive illness like dementia or perhaps from an acquired brain injury because of an accident. The decisions that may need to be made are varied and include:
- Collecting income and benefits
- Selling assets in order to pay care home fees
- Managing a compensation award
- Making decisions about where someone lives
- Making a will
- Managing a care team
If a family member or loved one has lost capacity, they may need a Deputy. A Court of Protection Solicitor can be appointed as a professional Deputy if the person doesn’t have anyone to act for them.
Contact one of our specialist Court of Protection Solicitors who can help you.
Who can be a Deputy?
Anyone over the age of 18 can be a Deputy, but any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the Court when applying. Any of these things could lead to the application being refused.
In many cases, a husband or wife, partner or close relative will become the Deputy. In cases where there is no one willing or able to take on the role, the local authority can do so, in low value estates, or a professional Deputy, such as a Solicitor, can be appointed.
Where the person lacking capacity has a large estate, a professional Deputy is usually the most appropriate option.
Powers and Duties of a Deputy
A Deputy’s powers come from the Deputyship Order made by the Court of Protection. The Deputy cannot exceed those powers. The Order could give wide powers to the Deputy, or it could set limits to those powers - for example it could state that large items of expenditure or investment cannot happen without further permission of the Court.
There are additional responsibilities like reporting to the Court. The level of this reporting will be decided and put in place by the Court of Protection.
The Deputy’s duties are set out in the Mental Capacity Act 2005, and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help them, without success
- A person cannot be treated as lacking capacity merely because they wish to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom
- In addition to following these general principles, the Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the Court and filing annual reports and accounts.
How are Deputyships Supervised?
When a Deputyship Order is made, the Office of the Public Guardian will allocate the Deputyship to a category of supervision.
This may range from close supervision (particularly for new cases in the first year or two) to a light touch supervision in straightforward cases. The Deputy’s reporting obligations will depend on the level of supervision.
Can You Terminate a Deputyship?
Yes you can. A Deputyship Order is terminated when the person lacking capacity dies or recovers capacity, or if the Order is limited in time and expires.
It can also be discharged by Order of the Court or Protection or on application by the Deputy, if he wishes to retire or resign. The Court will consider appointing someone else to act as Deputy in these circumstances.
Does someone need a Deputy if they already have a Lasting Power of Attorney?
No they wouldn’t as long as the Lasting Power of Attorney has been properly registered and it’s related to the decision needed to be made.
Both Lasting Power of Attorney’s and Deputyships are legal methods to make decisions for people who lack mental capacity.
The main differences are that a Lasting Power of Attorney is made by the person before they lose capacity, so it’s likely to reflect their wishes more than a Deputyship application, which is made by someone else after they lose capacity.
For free legal advice call our Deputyships Solicitors
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