It can often be extremely distressing when a member of your family you know love starts to lack the mental capacity to make decisions. Unless you have an instrument in place to take over their personal affairs you may find that you are completely unable to access their bank accounts, make decisions on their behalf regarding their welfare or collect any of their benefits for them. So, for example, a person with dementia may need a Deputy to collect their income and benefits and sell assets in order to pay care home charges. Or a person with an acquired brain injury may need a Deputy to administer a court settlement to pay for an ongoing care regime, or make decisions about medical treatment.
When this is the case it may be necessary to make a Deputyship application to the Court of Protection so that you can manage either their financial affairs or their personal welfare or both.
A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of another person, who lacks the mental capacity to manage them themselves. 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 on behalf of the person lacking capacity.
A Deputy will not be required if the person lacking capacity has previously made a Lasting Power of Attorney (LPA) . In this case, provided the LPA has been properly registered, the attorney can continue to make decisions on behalf of the person lacking capacity.
A Deputy can be appointed by the court to act as:
Any person over the age of 18 can be a Deputy. Any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become Deputy and these could lead to the application being refused.
In many cases a spouse, partner or close relative will be the Deputy. In cases where there is no-one able or willing to take the role then the local authority can do so (in low value estates) or a professional Deputy (eg a solicitor) can be appointed. Where the person lacking capacity has a large estate then a professional Deputy will almost always be appropriate.
A Deputy’s powers derive from the deputyship order made by the Court of Protection and the Deputy cannot exceed those powers. The order may give wide powers to the Deputy, or it could set limits to those powers, for example providing that large items of expenditure or investment cannot take place without further permission of the court.
In addition to following general principles set out in the Mental Capacity Act 2005, 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.
We are able to guide you through the process of making the Deputyship Application to the Court of Protection and in appropriate cases may be able to act as the Deputy. Please contact us for more information.