Removing or replacing a court appointed deputy
If someone becomes unable to manage their own affairs, relatives can apply to the Court of Protection to have a deputy appointed to represent the individual in financial and other matters. The deputy will usually be a close family member.
The time may come when a deputy needs to be removed or replaced. We look at the process for this and what to do if there is no-one else available to take on the role.
When is a deputy needed?
When an individual does not have the mental capacity to deal with financial matters or make decisions relating to their health and welfare, they need someone to handle this for them. Ideally, everyone should have a Lasting Power of Attorney (LPA) appointing their chosen individual to assist them in the role of attorney.
If someone does not have an LPA, their relatives will need to ask the Court of Protection to make a deputyship order. The court will set out what authority it is giving to the deputy, for example, any limits on dealing with financial and property matters.
It is common for a deputyship order to be needed if someone develops dementia or has been involved in an accident that leaves them unable to manage matters. People with learning disabilities may also need a deputy to assist them.
What does a deputy do?
A deputy can be responsible for either property and financial affairs or health and welfare issues. They must act in the protected person’s best interests at all times and, if possible, assist the person in making decisions themselves.
The deputy cannot exceed the authority set out in the deputyship order and must keep clear records of all actions taken. Annual reports need to be submitted to the Office of the Public Guardian (OPG).
Common tasks for a deputy include:
- Managing bank accounts
- Investing
- Paying bills
- Managing property
- Applying for and receiving benefits
- Keeping accurate records
- Submitting annual reports
- Arranging care
- Deciding what the protected person’s day-to-day life will look like
- Deciding what medical treatment they will receive and what will be refused on their behalf
If a deputy needs to take action that is not authorised in the deputyship order, for example, selling the individual’s property, they will need to apply to the Court of Protection for a specific order allowing this.
Replacing a deputy
If a deputy is no longer able to continue, for example, because they no longer have time or their own capacity means it is not feasible for them to continue, an application should be sent to the Court of Protection. This should state the reason for stepping down and name the potential replacement.
If you do not have anyone suitable, you can ask an expert deputyship solicitor to take on the role. They will make a charge for this.
Removing a deputy
In some circumstances, you may need to remove a deputy. This could be because you feel that they are no longer managing the role effectively because you wish to use a different professional deputy or in the event that the protected person no longer gets along well with the individual in question.
Alternatively, there could be questions over conflicts of interest or whether finances are being dealt with adequately.
Removal of a deputy is dealt with by the Court of Protection, and you will need to provide evidence that the deputy is no longer able or willing to carry out the role or that the protected person’s best interests are not being properly observed.
The first step is to put together a strong case with evidence supporting the removal. An application is then made setting out the issues. It is strongly recommended that a solicitor is used to put together the case to ensure the application has the best chance of success.
Once the Court of Protection receives the application, it will go through the information provided and make the order it considers to be in the protected person’s best interests.
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