If you are looking for information about becoming a Court appointed Deputy for someone, the information on this page should help you to understand what this means, how to become appointed and what is involved.
The first thing to consider is; does the person I am caring for or what to make important decisions for still have the capacity to make those decisions for themselves?
Bearing in mind, under the Mental Capacity Act 2005: Code of Practice, at para 2.5, the starting point for assessing someone’s capacity to make a particular decision is always the assumption that the individual does have capacity. Some people may need help to be able to make a particular decision or to communicate that decision, but this does not mean they lack the capacity to do so.
Power of Attorney or Deputyship
Where someone (from here on called “P”) is able, with the assistance of another person, technology or any other aid, to make their own decisions, this must be supported. In this situation, P may be able to make a Lasting Power of Attorney (LPA) themselves, appointing an Attorney(s) of their choice. Once created and registered an LPA for Property & Financial Decisions, if setup correctly, provides the Attorney(s) with the ability to act under P’s direction.
This works well where P is housebound or living in a care facility or finds it difficult to communicate with people generally, but can often be understood by a key person involved with their care or daily living. For example, we recently assisted a client who was almost totally deaf and blind, but had full mental capacity, to create an LPA for Property & Financial Affairs. She is now able to give instructions to her Attorney, someone she can communicate with more easily, and they can act on her instructions. This has made her live much easier, but she still has control of her decisions.
Loss of Mental Capacity
Assuming P is now unable to make decisions for themselves and no LPA has been setup (this can be checked with the Office of the Public Guardian), the only option is to apply to the Court of Protection to become a court appointed Deputy, if you want to take control of that person’s affairs.
Do You Meet the Requirements?
You can only be appointed as a Deputy for P if you meet these requirements (this is not an exhaustive list):
1. You must be 18 or over.
2. You must have the skills to make financial decisions for someone else if you are applying to be a Property and Affairs Deputy.
3. You must not be bankrupt.
4. Normally you will be a spouse, partner or a close relative, but a professional such as a Solicitor or Social Worker may also be appointed.
Types of Deputyship
There are two different types of Deputyship which are:
1. Property and Affairs: A person appointed as a property & affairs Deputy will make decisions about such things as, the sale and purchase of houses, dealing with bank accounts and investments.
2. Personal Welfare: A person appointed as a welfare Deputy will deal with decisions relating to a persons health and welfare including medical treatment and where they should live. (It should be noted that it is unusual to be appointed as a Personal Welfare Deputy because everyone involved with a person who has lost mental capacity is duty bound to act “in the best interests” of that person).
Apply to become a Deputy
Assuming you meet the criteria, you apply to the Court of Protection by means of an application form to be appointed as a Deputy. The court will conduct checks to confirm that, the person needs a Deputy or some other kind of help. They will check that there are no objections to you being appointed.
If there is more than one person applying to become a Deputy, then you will need to decide how you are going to make decisions. You can either make decisions together (Joint deputyship) in which case all the deputies have to agree.
Alternatively, you can make decisions separately (Joint and severally), which means that all the deputies can agree or any individual deputy can act on their own.
You will need to tell the court which option you want when you make the application.
Sometimes, a professional Deputy is appointed. These are often people such as accountants, solicitors or even representatives from the local authority. It is worth remembering, a professional Deputy will be paid for the role.
Once you have been appointed as a Deputy, you are responsible for helping P to make whatever decisions they can or making decisions on their behalf.
You must always consider P’s level of mental capacity every time you are making a decision for them. You must not assume they have the same level of mental capacity every time. For example, P may not be able to decide what they want to do with large sums of money, they may not even understand the concept of money, but they may well understand what it is they want for dinner.
The Court of Protection will give you a court order, this says what you can and cannot do as the Deputy. There are also the general rules provided in the Mental Capacity Act 2005 code of Practice.
There is an application fee of £365, which needs to be sent with your application. If you are applying to become a deputy for Property and Affairs and Personal Welfare, you will need to send two fees with your application.
If the court decides your case needs a hearing, there will be an additional fee of £485 to pay. The court will make it clear and inform you if a hearing is needed.
Once appointed, you will be required to pay £320 for general supervision or £35 for minimal supervision. If you are a new Deputy you will also need to pay a £100 assessment fee.
When acting as a Deputy for Property and Affairs, there will also be a Security Bond payment. This is paid to a security bond provider, not to the court itself. The fee is dependent on the value of P’s estate and how much of it you control.
A Deputyship Solicitor will charge around £850 +VAT + disbursements to complete all the documentation for a basic application.
It may be necessary to have a Mental Capacity Assessment carried out for P. This is normally done by a Doctor or other specialist assessor and a report written up and provided to the court.
If you are considering applying to become a Deputy for someone, we can help with all the different aspects of the application process. Our initial meeting is free and we can answer any questions you may have.
Applying to become a Deputy can be daunting for those who have no experience of courts and application procedures, we’re here to help.
If you would like to speak with one of our experts give us a call on 01202 798867 or complete our contact form. (Link)
The information above is for information only and should not be taken as legal advice. The fees stated were correct at the date of publication August 2019.
Atheneys cover Ringwood, Bournemouth, Poole, Dorset & South Hampshire.