If you are in the difficult position of having a loved one who is no longer able to manage their own affairs, you may need the help of the Court of Protection.
The court deals with matters relating to those who do not have the mental capacity to make their own decisions, whether this is through dementia, brain injury, or disability.
Ideally, everyone would have a Lasting Power of Attorney (LPA) in place appointing an attorney to represent them if, in the future, they need help. However, if someone has not made an LPA, then they can still be helped by a deputy.
How to become a deputy for someone
If you need to help someone who no longer has mental capacity, you can apply to the Court of Protection for a deputyship order appointing you as their deputy.
You can apply for a property and financial affairs order, or for a personal welfare order, depending on what assistance you need to give.
A property and financial affairs order can give you the authority to deal with the individual’s bank account, pay their bills, look after their home, and make investments for them.
A personal welfare order can authorise you to arrange care and allow or decline medical treatment for the individual.
It is essential that the individual is assessed by a mental capacity professional, such as a GP or psychiatrist, who will complete an Assessment of Capacity form, COP3, which will accompany your application.
You will then need to fill in an application form providing a wide range of details in respect of the individual and their financial position, if you are applying for a property and financial affairs order, as well as details of your own financial position.
It is also necessary to notify the person whom you will be assisting that you are applying for the order, as well as at least three interested parties, such as the individual’s doctor, friends, or relatives.
If you are applying for a property and financial affairs order, you will be required to pay an insurance bond, which will give cover to protect the individual’s assets.
Obligations under a deputyship order
A deputy needs to keep detailed records of all of the actions taken on behalf of the individual. This includes how decisions were made, and who they discussed any decisions with before making them.
They must act in the best interests of the individual at all times, which includes dealing with matters in the way that they believe the individual would have wanted.
An annual report will need to be submitted to the Office of the Public Guardian (OPG), setting out what financial transactions occurred, including expenditure, income, and gifts. Bank statements will be included by way of evidence.
It is open to the OPG to request more frequent reports if it believes these are necessary.
Avoiding the need for a deputyship order
It is preferable to have Lasting Powers of Attorney in place, rather than a deputyship order. This gives the individual the chance to choose their own attorney or attorneys, and to specify exactly what authority they wish to give them.
It is a cheaper and easier process to register an LPA, and there is less ongoing supervision. If you would like to put LPAs in place, you can speak to an LPA solicitor, who will be able to advise you on the types of authority you can include.
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