Court of Protection: How to make an application for Deputyship
When a family member or a friend loses mental capacity, the most ideal arrangement is to already have a Lasting Power of Attorney (‘LPA’) in place. This is put in place by a person concerned while they still have capacity. However, there can be many circumstances when an LPA has not been put place.
In this case, the solution is to apply to the Court of Protection for a Deputy to be appointed. A Deputy can be authorised to make decisions in relation to Property and Finances and/or Health and Welfare.
What is Mental Capacity?
In order to have a Deputy appointed by the Court of Protection, the person, on whose behalf you are applying (‘the Protected Party’), must lack the necessary capacity to make certain decisions in relation to their property and finances or health and welfare. Capacity is decision specific and can vary. This means a Protected Party could be capable of making decisions in one area, but not another.
A person is deemed to have capacity unless it is proven otherwise. It is therefore important for a capacity assessment to be carried out by a medical expert or social worker.
Loss of the necessary capacity could be for a range of reasons, from serious illness to severe learning disabilities as well as a brain injury following an accident. A person can gradually lose capacity due to dementia although during the early stages it may still be possible for someone to put in place an LPA.
What is a Deputy and why is one required?
Like an LPA, a Deputy is one or more persons authorised to make decisions on behalf of a person who no longer has the capacity to make their own decisions. A Deputy can be appointed for Property and Finances or Health and Welfare or sometimes both. However, a Deputy is appointed by the Court of Protection, which means they are supervised more closely which also makes an appointment more expensive, costly and time consuming.
A Deputy can be appointed to deal with:
• Property and financial affairs, including managing the a Protected Party’s bank accounts, income, property and investments, paying bills and accommodation costs on their behalf, applying for benefits and purchasing and adapting property.
• Health and Welfare, including living arrangements and medical care.
Who can be a Deputy?
Any adult over the age of eighteen can apply to be appointed as a Deputy by the Court of Protection. However, if you have been bankrupt or have a history of fraud or similar then it is unlikely that your appointment as a Deputy will be agreed.
A Deputy can be a family member or close friend (‘Lay Deputy’) but it can also be a professional such as a solicitor. A Professional is usually appointed when matters are complex, a Protected Party’s estate is high value, a large compensation award has been received or a family member doesn’t want the responsibility.
What is the procedure for applying to be a Deputy?
If you wish to apply to be appointed as a Deputy and have obtained the capacity assessment from a medical expert, you will then need to complete a number of application forms. These forms give the Court of Protection information on the Protected Party and help them decide whether a Deputy is required. The forms require a lot of detail and it is important to get them right.
As part of the application process you are required to notify certain people of the application, such as close family members. This then gives these people the opportunity to object to the application if they wish to.
If there are no objections the Court will then consider the application and if they are happy, they will appoint the Deputy. The appointment will be confirmed in an Order, which also sets out the responsibilities of the Deputy and any restrictions. This Order can then be sent to the relevant organisations and then gives the Deputy the authority to speak to them.
The Court of Protection deals with a large number of applications on a daily basis and therefore the whole process can sometimes take around 4 months. This can cause problems if there are bills to be paid as no one has the authority to deal with the finances of a Protected Party until the Deputy has been appointed.
What are the costs involved?
Costs include an application fee currently of £385 and supervision fee to be paid to the Office of the Public Guardian on an annual basis. There is also a premium to be paid for a security bond. All costs are paid from the funds held by the Protected Party.
A solicitor will be able to advise you accordingly, and potentially save you time and money.
Do I need a solicitor?
When a loved one has lost capacity, we understand that it can be a difficult time. It is also very easy to make a mistake in the process of applying for a Deputy to be appointed. By working closely with a solicitor who specialises in the Court of Protection and understands the difficulties you might be facing, they will have the expertise to guide you smoothly through the whole process, with as little stress as possible.
Here at Osborne Morris and Morgan Solicitors we can also support you as Deputy with tasks such as completing tax returns, preparing the annual Deputy Report as well as assisting with communicating with the Local Authority or preparing a Statutory Will for a loved one.
Contact Osborne Morris & Morgan solicitors
If you would like to know more about applying for a Deputy to be appointed, we are here to assist you. To speak with one of our specialist Court of Protection solicitors, please call us on 01525 378177 or you can contact us online.