Legal News | 30.09.21
Deputyship – your questions answered
When someone loses capacity, it can be a very difficult time, bringing with it both emotional and financial challenges. If that person does not have a power of attorney* in place, then you may need to apply to the Court of Protection for a deputyship order so that important decisions can be made on their behalf.
What is a deputy?
A deputy is an individual or individuals appointed by the Court of Protection to manage the affairs of a person (P) who is mentally incapable.
Deputies can include P’s spouse or civil partner, children, relatives or friends or, where needed, a professional advisor or a panel deputy.
It is a good idea to have more than one deputy appointed and for the attorneys to be able to act on a joint and separate basis. This can avoid the need for a further application in the future should a solely appointed deputy become unable to act.
The responsibilities of a deputy
A deputyship order can be obtained for a) finances and property and b) health and welfare.
While finance and property deputyship orders are quite common and can enable deputies to sell P’s property, pay bills on P’s behalf and invest money for P’s benefit, it is more difficult to obtain a health and welfare deputyship order. This is because the Mental Capacity Act 2005 allows care providers to make decisions in an individual’s best interests, thereby theoretically removing the need, apart from in exceptional cases, for a health deputy to be appointed.
Once appointed, any decision made by a deputy must be in P’s best interests. Deputies are closely monitored and are subject to supervision visits by the Court of Protection, with whom they must also file annual accounts.
How is the deputyship application made?
A number of forms, detailing P’s assets and liabilities and confirming the proposed deputy’s suitability must be completed and submitted to the Court of Protection for consideration. At the same time, an assessment of P’s capacity must be obtained from a medical professional and provided to the Court. The Court of Protection will consider all of the information provided and if satisfied as to the need for and suitability of the deputy, a deputyship order will be issued between six and twelve months after the submission of the application.
The whole process can be time-consuming and complex. To obtain more information regarding the process of applying for a deputyship order or for guidance regarding the role of deputy, please get in touch with your usual contact or email us at firstname.lastname@example.org.
*Lasting Power of Attorney or pre-2007 Enduring Power of Attorney