When a loved one loses the mental capacity to make personal and financial decisions on their own, it can be an emotional time for all involved. Thankfully, there are things that can be done to assist, such as working with the Court of Protection to manage their affairs.
The Court of Protection looks after those people who unfortunately are no longer able to look after themselves or make decisions about their personal and financial circumstances unassisted.
It is possible for the Court to appoint a deputy, or deputies, who will make day-to-day decisions on behalf of the person who has lost mental capacity. If no one can be a deputy, they will appoint a panel deputy, who will usually be a professional such as a solicitor.
There are two types of Court of Protection deputies – personal welfare deputies and property and affairs deputies. They are able to make decisions about different types of matters related to a person without mental capacity.
A personal welfare deputy is less common than a property and affairs deputy. They only tend to be used in more complex matters relating to a person who has lost their physical and mental capacity. They will make decisions regarding care, support, and health issues. A property and affairs deputy will deal with matters such as managing finances, selling and/or buying assets and paying bills.
There is a similar incapacity arrangement called a lasting power of attorney (LPA). This is made by a person when they are of sound mind but want to nominate a trusted person or people against the chance that they might lose the capacity to make decisions for themselves in the future. This trusted person will assist in making decisions or make them on that person’s behalf.
When does the Court need to appoint a deputy?
The Court of Protection will decide whether they consider someone to have lost capacity to make certain decisions. This is usually done through evidence presented by a doctor. If the loss of capacity is longer-term, the Court will choose a person to be appointed as a deputy who will take charge of that person’s affairs, or a person can apply to become their deputy.
Loss of capacity is most often caused by an illness, such as Alzheimer’s or dementia, but it can also be caused by unfortunate incidents like a stroke or a brain injury, as well as PTSD and severe learning difficulties.
Loss of capacity isn’t necessarily where someone is no longer able to make any decisions. Sometimes it might be that they can make personal decisions but are unable to make financial decisions.
What duties do Court of Protection deputies have?
A property and affairs deputy’s duty could include:
- Deal with income
- Pay bills and debts owed
- Deal with cash assets
- Deal with capital assets
- Manage property
- Sell property
- Buy property
- Make investment decisions
A personal welfare deputy’s duty could include decisions around:
- Where the person should live
- Whether the vulnerable person can marry or have sexual relations
- The vulnerable person’s contact with particular people
- What medical treatment they receive
Once a year, an annual report is required to be sent to the Office of the Public Guardian (OPG). This report will outline the decisions a deputy has made and why they were made.
What are deputies prohibited from doing?
There are particular things that deputies are prohibited from doing; some of these include:
- Restraining the person (unless they’re in harm’s way)
- Making or adjusting their will – if they do not have one, an application can be made to make a statutory Will on their behalf
- Holding the person’s property or money in your own name
- Stopping life-sustaining treatment
- Taking advantage of the situation
Who can become a Court of Protection deputy?
If a person is over the age of 18, they have the right to apply to become a Court of Protection deputy so long as they meet the eligibility criteria, such as the ability to make financial decisions on behalf of someone else.
Most usually, a deputy is someone’s friend or family. A person can apply to become one type of deputy or both types.
When someone decides that they want to become a deputy, they will need to file four forms, one of these is a capacity assessment done by a professional person. The applicant is responsible for notifying the relevant people, such as the person lacking capacity and relatives. The Court will then either accept or decline the application.
There is also the possibility of an application to become a deputy being contested by a third party.
How long does it take to appoint a deputy?
The standard time it takes for an application to be accepted and a person to be appointed as a deputy is around four to six months, but in the case that it is contested, it could take longer to resolve.
There are circumstances where the appointing of a deputy is an emergency matter. In this instance then an emergency application can potentially be submitted to the Court of Protection. The application process is different to the standard route.
Get in touch with our incapacity arrangements solicitors
For help with a Lasting Power of Attorney or Court of Protection deputyship, please call us on 0117 909 4000 or use the links below to make an enquiry or request a call back, and we will get back to you promptly.