Understanding Deputyship and the Court of Protection in England and Wales
Often people assume that if they were to lose their ability to look after their financial affairs and make their own decisions then their spouse or children will have the power to access bank accounts and make decisions.
That is not the case.
In the event that you were to lack capacity, only those that you have nominated as ‘Attorney’ under a valid Enduring or Lasting Power of Attorney would be able to act for you. So what happens if you chose not to create a power of attorney and lose capacity, or lose capacity suddenly without having one in place?
In these circumstances a suitable person can being an application to the Court of Protection for the appointment of a ‘Deputy’. A Deputy can be a member of the family or a friend. Deputies are usually appointed to make decisions about property and financial affairs. However, where a person’s medical needs are complex and the treatment or management plan requires many ongoing decisions it is possible to apply for a health and welfare appointment.
It is worth noting that if there are no suitable family members or friends, perhaps due to none wishing to act or where there is a conflict or dispute, the Court can appoint a professional and refer to the approved panel of Court of Protection professional Deputies. There are about 65-70 professional deputies throughout England and Wales and at Bennett Griffin, we are proud that our partner Ian Macara holds this panel appointment.
If someone is appointed as Property and Financial Affairs Deputy for a vulnerable person it is worth noting that their authorisation derives from a Court Order which will determine the level of decision making powers the Deputy can operate.
Procedure and timescale
When considering an application to the Court for the appointment of a Deputy, it will be necessary to obtain a formal mental capacity assessment of the person who has lost capacity to make their own decisions. This is usually obtained by instructing a specialist mental capacity assessor, for which a fee is payable.
Additional documentation forming the application sets out the person’s assets, liabilities, income and expenditure. The Applicant Deputy must also complete a formal ‘Declaration’ to set out the reasons as to their suitability to be appointed as a Deputy.
The application is usually issued by the Court within four weeks of sending the papers to Court, together with the commencement fee (currently £365).
Once the is has been issued, various formal Notices will need to be sent to the person to whom the application relates, relatives or any other party reasonably interested in protecting that person’s affairs. Subject to any objections received, and whether a Court Hearing is required, the Court will aim to make a Deputy Order within 26 weeks of receiving the application. In practice, this time limit is approximate and can be exceeded depending on the complexity of the application.
This process is lengthy and can be expensive in comparison to preparing Lasting Powers of Attorney as there are annual fees associated with insurance and assessment of the Annual Deputy Report by the Office of the Public Guardian.
Strictly speaking, throughout the application process no decisions relating to that person can be taken unless there are extreme circumstances. This could cause problems when paying bills or meeting the costs of care fees.
Once the Order has been granted the Deputy will need to register a copy of it with any person or institution they wish to deal with on behalf of the person e.g. their bank, pension provider etc.
Deputy’s role and responsibilities
The law is clear that the Deputy must, in so far as is possible, involve the person in the decision to be made.
Such involvement will depend on that person’s mental capacity to understand the nature and effect of a decision that needs to be made. For example, a person may not have the mental capacity to understand and make decisions around their investments or the sale of property, but they may have the ability to withdraw money from their bank account to undertake shopping.
The Deputy’s role is essentially one of trust. Where a person cannot be involved in the decision-making process due to incapacity, a Deputy is trusted by the Court to make such decision and act in the ‘best interests’ of the person who has lost capacity to manage their affairs.
A Deputy must make the best decision for that person, to the exclusion of all other interested parties. For example, using money for their own benefit or trying to shield assets against the payment of care fees to protect an inheritance under a Will is fundamentally wrong. Such decisions can result in the Deputy being removed from their appointment, actions to recover funds from the recipient and police involvement.
Do you need a solicitor?
In very straightforward circumstances where assets are known and there are no conflicts, you may not need a solicitor to assist with drafting the application or providing advice during the Deputy management.
However, it may be advisable to take advice to ensure your application to Court requests all the Orders you are ever likely to need. For example, if you do not expressly request authority to buy or sell property, you may need to bring a further application to Court for an additional Court Order.
However, for complex situations where family relationships are fragmented and there may be objections to one party applying for Deputyship to the exclusion of others, or where assets and the management of the day-to-day affairs may be complex and outside the skills of a Deputy, you may need to engage a solicitor for professional advice. Often we just don’t know what we don’t know!
Engaging the services of a specialist Court of Protection solicitor will give you peace of mind that the application has been drafted correctly and at the end of the application you will have the Court Authority you need to be able to look after your loved one and their affairs. You will also have the benefit of expert and experiences advice on best interests’ decisions and compliance matters throughout the Deputyship.
About the author
Catherine Diamond is an Associate Solicitor and Head of Care, Capacity & Court of Protection at Worthing law firm Bennett Griffin LLP, a member of the Court of Protection Panel of Deputies.
Catherine is an Accredited Member of Solicitors for the Elderly, a Dementia Friends Champion and Chair of Dementia Friendly Fareham & Gosport. She can be contacted by phone on 01903 706 994 or by email at [email protected]