If someone loses the capacity to make their own decisions, a relative can apply to the Court of Protection for a deputyship order. This will give the relative authority to manage the person’s finances on their behalf. We take a look at the process.
The best way of preparing for the future is to put a Lasting Power of Attorney in place. This appoints a trusted representative to deal with matters, should you ever become incapable of doing so yourself. Where an individual has not made a Lasting Power of Attorney, the only alternative is to obtain a deputyship order.
Types of deputy
There are two types of deputy:
- A property and financial affairs deputy
- A personal welfare deputy
You can apply to the Court of Protection to be either or both for a relative if they are no longer able to manage their own affairs, for example, because they have dementia. The court will only generally appoint a personal welfare if there is an ongoing decision to be dealt with, such as where someone will be cared for, or where family members disagree over what should happen.
A property and financial affairs deputy can manage the person’s finances, to include paying bills, arranging for maintenance of their home and, if necessary, selling it.
A personal welfare deputy can make decisions about where the individual will live, their day-to-day routine and what medical treatment they will receive.
Applying for a deputyship order
You will need to complete an application form as well as an assessment of capacity form in respect of the individual for whom you intend to act. The assessment of capacity form needs to have details of the person’s impairment added by a practitioner who could be the individual’s GP, a psychiatrist, an approved mental health professional, a social worker, a psychologist, a nurse or an occupational therapist.
The application needs to name three people who know the individual. This could be their relatives, their social worker or their doctor. When the Court of Protection stamps your application and returns it to you while it considers whether to grant a deputyship order, you need to send a copy of the application to these three people along with an acknowledgement form for them to complete, as well as sending a copy to the individual.
The individual must be told that you are the person applying to be their deputy and what this means. They must also be told that this is because their ability to make their own decisions has been questioned and where they can get advice.
They should be given a completed notification form advising them of the proceedings and an acknowledgement form to be completed by them if they want to have any input into the process.
The court will consider the forms and may request a hearing or ask for more information, such as a report from a social worker.
There is an application fee of £371 and you will also need to pay £494 if there is a hearing.
If you are asking for a deputyship order to enable you to deal with property and finances, you will usually need to pay for a security bond that will provide insurance cover.
Acting as a deputy
Once the deputyship order has been made by the court, the appointed deputy can use it to start dealing with the person’s affairs. For example, by providing the bank with a certified copy of the order together with your identification documentation, you should be able to start managing the person’s bank account.
If you are acting as a deputy, it is important to keep clear and accurate records of everything you do, including decisions you make and financial transactions.
You will need to fill in an annual report form which is sent to the Court of Protection each year that you act as a deputy. This has to include the reasons you took the decisions you did, why you believe these decisions to be in the best interests of the person, details of anyone else you spoke to about a decision and why they felt a decision was in the person’s best interests and all financial details.
A supervision fee is payable each year and it is usually a requirement that a deputy pay an annual fee for a security bond.
A Lasting Power of Attorney is a cheaper and easier alternative, however this can only be put in place while someone still has sufficient mental capacity to understand the implications of signing.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com