The Court of Protection is a specialist Court which looks after individuals who lack capacity to make decisions for themselves ie. they ‘lack mental capacity’. In the unfortunate event that someone loses capacity and does not have a valid Lasting Power of Attorney, the Court of Protection has the power to appoint an individual to act on their behalf as their Deputy, to make these decisions for them.
A deputy is someone appointed by the Court of Protection to deal with the property and financial affairs of a person who lacks the mental capacity to do so themselves. A deputy must be at least 18 years old and can be a family member, a friend or even a professional. In more complex cases, particularly those involving large sums of money, the Court may prefer to appoint a professional deputy from the Court of Protection panel.
When making a decision as a Deputy you must:
- Make decisions that are in their best interests of the person who lacks capacity and only if the decision cannot be made for themselves.
- Only make the type of decisions that the Court gives you permission to make. For example, further Court approval would be required if you had to sell a property.
- Be continually guided by the Mental Capacity Act 2005 Code of Practice.
- Make decisions with a high standard of care in mind.
What authority does a Deputy have?
Being appointed as Deputy will grant you authority to deal with the affairs of the person who lacks capacity, particularly in cases where it may become urgent. Life is unpredictable and situations may arise in the most unexpected circumstances. Thus, if the person who lacks capacity is appointed as an Executor of the estate for example, you will have authority as a Deputy to deal with this. If there is an important business transaction or property deal that needs to be signed off, having an appointed Deputy allows these transactions to proceeds. These responsibilities are just an example of situations which may arise along with all the daily duties that you may need to undertake on behalf of welfare of the person who lacks capacity.
The practical duties of Deputy will include:
- Arranging for a security bond to be put in place. This is an insurance against any mistakes made by the Deputy which result in financial loss to the person who lacks capacity.
- Pay an assessment fee and annual supervision to the Office of the Public Guardian.
- Ensure proper control of the property and affairs belonging to the person who lacks capacity and make decisions in their best interests.
- Submit an annual return detailing expenditure and income received on behalf of the person who lacks capacity. You may also need to provide a report to the Court on a regular basis about the decisions you make and the reasons for them.
It is important to note that in terms of personal welfare and health decisions, the Court only tends to make Deputyship orders in the most difficult of cases. This may be where a person suffers from a progressive illness or profound learning difficulties and various medical decisions are required to be made on their behalf over a long period of time. A Welfare Deputy may also be appointed, for instance, where a vulnerable person has poor physical and mental health, and it would assist those treating them to have a Deputy appointed.
How do you become a Court of Protection Deputy?
To become a Court of Protection Deputy there are a number of applications that must be completed and submitted to the Court. During the application process, medical evidence will need to be submitted. There are also several people that must be formally notify about your application process – such as other family members, including the person that you are applying to make decisions for.
If your application is successful, the Court will grant you a court order, which will outline your powers and responsibilities.
Applying to become a Court of Protection Deputy can be a daunting and complicated process. We can guide you through the application process and apply directly on your behalf.
Case Study: Cumbria County Council v A [2020] EWCOP 3824/7/2020
Where a deputy wishes to discontinue in the role, an application must be made to the court.
The court said that it was important to identify that when a deputy indicates an intention to withdraw consent to act, this requires an application to be made to the court. In such circumstances it was axiomatic that the withdrawal of the deputy’s consent to act is not, in itself, determinative of the decision to discharge. The decision is for the court. When the court comes to consider an application by a deputy to be discharged from the role it will arrive at its decision by focusing on the impact on the person who lacks capacity of either granting or refusing the application.
For advice on Court of Protection and Lasting Powers of Attorney please contact Heather Lally 01244 354800 or email her on Heather.Lally@dtmlegal.com
