What is the Court of Protection?
The Court of Protection was created to protect a vulnerable person in both financial and personal welfare matters. It has jurisdiction over the property and financial matters and personal welfare of people who lack mental capacity to make decisions for themselves. The Court can appoint a deputy or deputies to make these decisions if there is no Lasting Power of Attorney in place.
What is a deputy?
A deputy or deputies are the person/persons appointed by the Court of Protection to deal with the affairs of the person who has lost mental capacity and can no longer manage their affairs.
Why do I need a deputyship order?
If someone has lost mental capacity and they are not able to give instructions for Lasting Powers of Attorney, then the only option is to make an application to the Court of Protection for the appointment of a deputy.
Who can be a deputy?
It is normally a relative who would make the application to the Court of Protection for their appointment as deputy. If there are no relatives or the relatives are unwilling to act then a close friend, lawyer or other professional could also apply to deal with all aspects of their financial affairs.
What are the types of deputyship orders?
A property and financial affairs order gives the deputy the legal authority to manage the individual’s entire financial affairs, such as opening, closing and operating any bank, building society or other account, or selling a property.
A personal welfare order gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare, such as arranging medical treatment. They cannot make property and financial decisions. These orders are very difficult to obtain.
An application can also be made for a simple order to give a person(s) permission to make one-off decisions on behalf of the individual. These are often used for one-off welfare decisions.
Can I make an emergency application to the Court of Protection?
Yes, an emergency application can be made to the Court if there is a life or death situation and a decision needs to be made as soon as possible. The Court has a designated 24 hour emergency helpline specifically for welfare cases. If an urgent decision needed to be made on a financial matter, then an application could be made for an interim order to enable the proposed deputy to make the decision in question before to the issue of the deputyship order.
What decisions can a deputy make?
The Court order will explain what the deputy can and can’t do.
A property and financial affairs order gives the deputy the legal authority to manage the individual’s entire financial affairs, such as:
- Opening, closing and operating any bank, building society or other account
- Dealing with any investments the person lacking capacity may have and liaising with an IFA
- Claiming and receiving state benefits
- Receiving any income, including occupational and private pensions
- Dealing with their tax affairs and liaising with HMRC
- Selling or renting their property to fund their care (if the property is in their sole name)
- Paying bills and invoices and clearing all outstanding debts.
There are a few exclusions. For example, a deputy is not allowed to sell a property if it is held jointly with someone else as this requires a separate trustee application. A deputy also can’t purchase any property on behalf of the individual without the Court’s prior authority. They also cannot make personal welfare decisions.
A personal welfare order gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare, such as:
- Making decisions as to where the individual should live
- Making decisions on the individual’s day to day care, including diet and dress if appropriate
- Arranging for the individual to be given medical, dental or optical treatment
- Organising assessments needed for and provision of community care services
- Agreeing whether the individual should take part in social activities, leisure activities, education or training.
What are my obligations as a deputy?
When making decisions on behalf of someone else, the deputy is expected to consider the five key points of the Mental Capacity Act:
- Every adult has the right to make their own decisions and must be assumed to have capacity unless it is proven otherwise.
- People must be given all appropriate help before they can be considered unable to make their own decisions.
- Individuals have the right to make unwise decisions, including decisions that others may consider eccentric.
- Anything done for or on behalf of a person who lacks capacity must be in their “best interests”.
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
The Court also requires the deputy to be familiar with the Code of Practice, this provides information and guidance for people affected by the Mental Capacity Act and explains how it works in practice.
The deputy should, where possible, involve the person with any decision making and always ensure they always act in the person’s best interests.
Do I need to record my actions as a deputy?
Yes, record keeping is essential when dealing with someone’s property and financial affairs. The deputy would be expected to complete an annual account which is submitted to the Office of the Public Guardian and this will show what the deputy has received on behalf of the person and what has been paid out on their behalf. This could also include showing proceeds of sale of a property or closure of bank accounts, and how the funds have been invested. It is essential that all accounts are kept in good order as the Office of the Public Guardian does, at intervals, ask to see proof, such as bank or building society statements.
What expenses are there involved in being a deputy?
At the beginning of a deputyship application there are several fees that need to be paid:
|Assessment of capacity form||Each surgery/practice has their own charging rates and fees generally range from £50 – £200|
|Court application fee||£371 (there is a fee exemption if certain criteria are met)|
|Security bond*||To be confirmed by the court|
|OPG appointment||£100 (one off fee)|
|Annual supervision fee (due 31 March)||£320 for general supervision or £35 for minimal supervision (this applies to some property and affairs deputies managing less than £21,000)|
* This is for property and affairs deputyships and is a type of insurance that protects the finances of the person the deputy is acting for. This is paid to a security bond provider and the Court will send a letter on how to do this. The amount the deputy pays depends on the value of the individual’s estate and how much of their estate the deputy controls. If the deputy pays for this using their own money, they can claim the expense back from the estate once they have access to it.
Can I be paid for acting as deputy?
No. Only a professional deputy, such as a solicitor or accountant, can be paid for dealing with financial affairs under a deputyship order. A lay deputy (a non-professional) person can claim reasonable, out-of-pocket expenses.
What happens if I can no longer act as deputy?
If the appointed deputy can no longer act for the person who has lost capacity for whatever reason or they die, another application would need to be made to the Court for a new deputy to be appointed.
What happens to the deputyship if they regain capacity?
If this happens then an application would need to be made to the Court to dispense with the current deputyship order; medical evidence would also need to be submitted confirming the regaining of capacity.
Can I change the deputyship order?
Yes, but this will involve a further application to the Court of Protection, clearly setting out the changes and the reason for the changes.
I am deputy for someone who doesn’t have a Will – how do I get one for them?
If they don’t have the capacity to make a Will, the deputy will need to apply to the Court of Protection to make a statutory Will. A statutory Will ensures that the person’s wishes can be met, such as gifts left to loved ones or favoured charities. An emergency application to the Court of Protection for a statutory Will can be made if they only have a short time to live.
As deputy, can I change their Will?
The deputyship order will not give a deputy authority to change the individual’s Will. However, should there be a legitimate need to change it then we can help with an application for a Statutory Will.
Do deputyship orders expire?
Deputyship orders do not have an expiry date on them. They would only end if
- the person to who it relates to has died or regained capacity
- the deputy has died or has lost mental capacity
- the deputy wishes to retire and appoint someone else
- there is evidence of financial abuse and the order is revoked by the Court of Protection.
How can Debenhams Ottaway help you?
Our specialist Court of Protection team will help you step-by-step in making a deputyship application, advise you on how to use the order once granted and what you will be expected to do in your role as deputy. All we would need from you is the financial details of the person you want to act for and contact information of their GP – we’ll do the rest.
Court applications can be lengthy and can often take up to six months to obtain but we do have extensive knowledge and experience of dealing with the Court of Protection and will help to make the process as smooth as possible. If the application is urgent, we can assist you with making a “fast track” application to the court.
Personal welfare orders are difficult to obtain but we do have a success rate in obtaining them and we can guide you on the likely success rate.
Please contact Tammie Woods if you would like any further information on Court of Protection applications.