Looking after someone else's affairs
You may be faced with helping someone close to you when they are unable to manage their affairs due to injury or illness. If they have set up a Lasting Power of Attorney or an Enduring Power of Attorney, these can be used to deal with all the necessary decisions in accordance with their wishes.
However if a Lasting Power of Attorney or Enduring Power of Attorney has not been set up, it would be necessary to apply to the Court of Protection for a Deputyship order where a Deputy is appointed.
What is a Deputy?
A Deputy is a person appointed by the Court of Protection to manage the property and affairs and, less frequently, the personal welfare of another person, who lacks the mental capacity to manage their affairs 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.
Once granted by the Court of Protection, this order will enable their affairs to be managed, for example money to be used to pay care fees.
We have set out brief details of how to apply to the Court of Protection for the Deputyship order. This can be done by a family member, trusted friend or solicitor.
If the person is no longer capable of managing their affairs, someone of appropriate standing will need to make an application to the Court of Protection.
The Court of Protection website contains the necessary forms and guidance on their submission. It also sets out the fees which you need to pay and the options for reclaiming those fees from the person you are acting as deputy for.
However it can be a complicated process; detailed forms need to be submitted and the appointment of the deputy approved. We can assist you through it all or just part of the process.
What is the difference between a Lasting Power of Attorney and a Deputyship?
Both LPA’s and deputyships are legal methods by which decisions can be made for persons lacking mental capacity. The key difference between the two is that:
- an LPA is made by the person before he or she loses capacity
- a deputyship application is made by someone after the person loses capacity and they have not already set up a Lasting Power of Attorney or an Enduring Power of Attorney.
An individual therefore has more control over the LPA process and choice of attorney and the LPA can therefore reflect the person’s own wishes before they lose capacity.
Types of Deputyship
A Deputy can be appointed by the court to act as:
- A Property and Affairs Deputy - making decisions about property and financial affairs, including the sale and purchase of property.
- A Personal Welfare Deputy - making decisions about health and personal welfare, including treatment options. However, the Deputy cannot refuse or consent to life sustaining treatment.
Who can be a Deputy?
Anyone over the age of 18 can be a Deputy. A prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become Deputy. These could lead to the application being refused.
Often a spouse, partner or close relative will apply to 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 e.g. a solicitor can be appointed. Where the person lacking capacity has a large estate then a professional Deputy may be more appropriate. The Directors of Whitehead Monckton are happy to act in this capacity.
What are the Powers and Duties of a Deputy?
A Deputy’s powers derive from the deputyship order made by the Court of Protection. The appointed Deputy cannot exceed those powers. The granted powers may be wide, or it could set limits, for example providing that large items of expenditure cannot take place without further permission of the court.
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 him, without success
- 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
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.
Supervision and Termination of Deputyships
Deputyship orders are supervised by the Office of the Public Guardian and may have different levels of supervision.
For example, new orders are likely to have close supervision for the first year or two, and then a “light touch” approach once patterns are established. The Deputy’s reporting obligations will depend on the level of supervision.
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 end by order of the Court or Protection or on application by the Deputy, if he wishes to retire or resign, enabling a new Deputy to be appointed.
Can we help?
Members of the Tax and Estates team regularly act as Deputies and are familiar with the practices of the Court of Protection.
We can also help preparing applications on behalf of prospective Deputies, liaising with the Court of Protection regarding those applications, assisting Deputies in managing their deputyships and in making further applications to the Court when needed.