Court of Protection

Deputyship

With life expectancy increasing all the time, many people will sadly lose the ability (known as ‘mental capacity’) to make decisions for themselves as they grow older. They may become less able to make decisions such as where they will live or what medical treatment they should receive. They may also become unable to manage their property and financial affairs. Deputyship offers one solution to making decisions on behalf of individuals lacking mental capacity as set out below.

What is a deputy?

A deputy is an individual appointed by the Court of Protection to make decisions on behalf of a loved one who lacks the capacity to make the decisions themselves. A deputy may be appointed to make decisions about a person’s property and finances or about a person’s health and welfare.

A property and financial affairs deputy is typically authorised to make decisions about things such as operating bank and building society accounts, the buying and selling of the person’s house and other assets, dealing with their tax affairs, claiming and receiving benefits and pension payments, and paying household, care and other bills.

A health and welfare deputy is typically authorised to make decisions relating to things such as where the person should live and what care they should receive, consenting to or refusing medical treatment on their behalf, and day-to-day matters such as the person’s diet, clothes and daily routine.

When is a deputyship application appropriate?

When a loved one loses capacity to manage their property and financial affairs or to make decisions about their health and welfare, there are several different options for making decisions on their behalf.

Your loved one may have planned ahead for this situation and made a valid enduring power of attorney (EPA) or lasting power of attorney (LPA) whilst they still had mental capacity to do so. In this case, the attorneys appointed under this power should be able to step in to start making decisions on the person’s behalf providing they are still able and willing to act. An EPA will only ever cover decisions relating to property and financial affairs whereas LPAs can be made to cover property and financial affairs and/or health and welfare decisions.

In the absence of a valid EPA or LPA, it may be necessary to make an application to the Court of Protection for the appointment of a deputy. This is particularly the case for property and financial affairs decision making where the incapacity is likely to continue into the future and where multiple ongoing decisions are likely to be required.

In some circumstances it might be appropriate to apply to the Court of Protection to make a one-off decision in respect of a person who lacks capacity (eg authorisation to sell the person’s house) as an alternative to an ongoing deputyship appointment.

Who may be appointed deputy?

No person has an automatic right to be appointed in priority to another and the Court of Protection has the final say over who should be appointed. The court will consider the choice of deputy carefully having regard to the best interests of the incapacitated person and will want to ensure that the deputy has the right level of skill and competence.

Typically, a close family member is appointed. Where there is no such person willing or able to act, a close friend, a solicitor or even a local authority might be appointed. A solicitor might also be an appropriate choice where the incapacitated person has high value or complex financial affairs or where there is conflict among family members as to who should be appointed.

The court may appoint two or more deputies and they may be appointed jointly or separately or jointly for certain key decisions and separately for other decisions.

The same person(s) or different person(s) may be appointed as property and financial affairs and health and welfare deputies.

What is involved in the application?

To apply for a deputy to be appointed for an individual lacking the capacity to manage their affairs, an application must be submitted to the Court of Protection. The application process involves providing the court with detailed information about the circumstances of the incapacitated individual, evidence of the person’s incapacity and a declaration by the proposed deputy, which assists the court in ensuring that the right person is appointed. 

In the case of a property and affairs deputyship, it will also be necessary to submit detailed information about the person’s finances. In the case of a health and welfare deputyship, information about the person’s doctor and any treating NHS body will be required as well as details of individuals with whom the person has regular contact.

A fee of £408 is payable with the application although some people can get exemptions or reductions on the fees depending on their financial circumstances. In most cases, the application fee and a solicitor’s fees for dealing with the application will be payable out of the incapacitated person’s finances.

Once the application has been submitted, the court will then assess the applicant’s suitability as a deputy from the information provided. There is also a process for notifying the person you are applying to be a deputy for, and for notifying other interested parties such as family members or friends of the person.

Once the various notifications have been given and providing no queries or objections are raised to the proposed appointment, the court will issue the order appointing the deputy. This order will set out the scope of the deputy’s authority, provide for payment of any costs incurred and, in the case of property and affairs deputyships, will usually require the deputy to take out a ‘surety bond’. The bond is insurance that protects the assets of the person whose affairs and property the deputy is managing. Where such a surety bond is required, the deputy will not be able to start acting until the bond is in place.

It will typically take several months from submitting the application to receiving a decision from the Court of Protection and the deputy being in a position to act. It is therefore important not to delay in submitting the application where a deputy is required to act urgently.