A Deputy is a person who is appointed by the Court of Protection to deal with another person's financial affairs and/or make personal welfare decisions for that person if they have not made their own Lasting Power of Attorney (or Enduring Power of Attorney if before October 2007) before they were unable to manage their own affairs.
Appointing a Deputy
The court will only appoint someone who is suitable and will give consideration to someone who has a connection to the person who lacks capacity. Usually, the applicant will be a family member or a close friend or a professional such as a solicitor or accountant. It is unlikely that the court would appoint a deputy who was a stranger to the person in question or was not a professional deputy.
Before an application is submitted, medical evidence needs to be obtained and notice must be given to the person’s close relatives and any person with an interest in their welfare such as an unmarried partner or carer. Once medical evidence is obtained and notice is given, the application is considered by the Court of Protection. If the persons being notified raise an objection to the appointment of the deputy, the Court of Protection will look at the evidence before making a decision.
Duties of a Deputy
It usually takes the Court of Protection approximately six months for someone to be appointed as Deputy. Once a Deputy is appointed, the Court of Protection will send the Deputy an order setting out the extent of his powers. Powers will depend upon the needs of the person the Deputy has been appointed to assist and will generally relate to finances and personal welfare. The role of the Deputy is of the most importance and a Deputy should always:
- Only make those decisions they are authorised to make pursuant to the court order;
- Adhere to the Mental Capacity Act 2005 five statutory principles;
- Make decisions in the person’s best interest;
- Fulfil their duty to apply certain standards of care and skill;
- Have regard to all relevant guidance in the code of practice.
A Deputy has to account to the Court of Protection at all times. Any major decision such as selling someone’s property needs the court’s permission. In addition, every year, the Deputy has to provide a ‘Deputyship Report’ to the Court. This report gives the Court of Protection details of the decisions that the deputy has made on the person’s behalf and also provides summary accounts for the court to approve.
In order to protect the person he is assisting, the Deputy also has to take out a ‘security bond’ to cover his actions as deputy. The security bond is usually set by the Court. All costs incurred in appointing a Deputy are payable from the assets of the person who lacks capacity.
The legal fees for a Deputyship application are likely to run into a few thousand pounds depending on factors such as the number of interested parties who must be notified and whether any objections are raised. The process takes approximately six months depending on how busy the Court is. It is therefore important to consult a solicitor at an early stage if you suspect that a relative is becoming unable to manage their affairs.
To talk to someone, with no-obligation, who understands the practical issues mental incapacity brings and is experienced in dealing with them effectively and sensitively, please contact Martin Oliver or John Rouse.
