Court of Protection & Deputyships
Individuals who have the capacity to make their own decisions can grant one or more people the power and authority to make decisions on their behalf should they later find themselves incapacitated. This is a legal document known as a ‘Lasting Power of Attorney’.
However, if someone already lacks capacity to make their own decisions, you would need to apply to the Court of Protection to be appointed as the person’s deputy in order to acquire the necessary legal authority to act on their behalf.
The Court of Protection
The Court of Protection can decide whether someone has the mental capacity to make a particular decision for themselves, can give someone permission to make one-off decisions on behalf of a person who lacks mental capacity, or can appoint someone, known as a deputy, to make ongoing decisions on behalf of a person who lacks mental capacity.
The deputy will often be a relative or close friend of the individual in need, and they are known as a “lay deputy”, as opposed to a “professional deputy”, such as a solicitor.
A professional deputy is usually appointed where there is no willing or suitable family member or friend to take on the role, if the person’s assets are large or complex, or if complicated decisions need to be made, sometimes over many years.
Applying to become a deputy
As part of the application process to become a deputy, you will need to submit a number of forms and a doctor’s certificate confirming to the Court that the individual in question cannot make decisions for themselves.
When going through this process, it is important to understand and precisely set out what powers you need the Court to confer. For example, you may only need the power to help manage money, or to make decisions about medical treatment or care. Conversely, if you need broader powers, you may need to apply for a set of specific permissions, especially if you need your deputyship to cover powers such as the authority to sell property.
Deputies may be empowered to make decisions about an individual’s financial affairs, property, healthcare, general welfare, or any combination of these aspects of their lives. Deputies have a huge responsibility; they are legally obliged to act in the protected person’s best interests and to follow the rules set out in the Mental Capacity Act. They must also report to the Court of Protection on a regular basis about the decisions they have made and their reasons for making them. The responsibilities of a deputy are set out in more detail here
Deputies must also keep a careful log of their activities and expenses in connection with those activities, and deliver annual accounts to the Court of Protection, so being a deputy is a complex and onerous responsibility.
The application process to obtain a Deputyship Order can appear daunting. However, we can help. From start to finish and guide you through the steps involved.
This includes helping you to establish that the individual in question is sufficiently incapacitated to warrant intervention, and ensuring you complete the forms correctly to avoid the risk of your application being rejected.
We can also help you to identify and set out clearly the powers you need the Court to confer, and advise on any legal limitations and responsibilities that you’ll need to consider. We can then help you to comply with your ongoing obligations – including the submission of annual accounts to the Court of Protection – and be on hand to advise on any other legal or practical issues that may arise, such as ensuring you keep a clear record of income and expenditure or disputing and appealing benefit decisions or care awards.
Appointing a professional deputy
If you want to appoint a Davey Law solicitor to act as a deputy, we are experts at managing the affairs and welfare of those who lack the mental capacity to do so themselves. We have decades of experience working closely with those involved – including the family members, close friends and carers of the person concerned – in order to understand and act in accordance with that individual’s needs and wishes.
If the individual’s incapacity is the result of personal injury or medical negligence, we can also help to protect and manage any compensation pay-out they have received (or may receive in the future). This can include setting up a personal injury trust to ringfence some or all of the compensation for their ongoing care needs, so it’s not taken into account in the assessment of means-tested benefits or care contribution. This is a complex area of law where specialist advice is needed.
How can we help?
If you are looking for help or guidance relating to Court of Protection matters or setting up a deputyship, please call us and we’ll talk through your options. If we believe that appointing a deputy is the right choice, either a lay deputy or a Davey Law professional deputy, we will offer you a competitive quote, with no hidden extras.