If someone loses mental capacity and can no longer make their own decisions, the Court of Protection can appoint a Deputy to manage their affairs. In this detailed guide we look at how a Deputyship application works in England and Wales and how you can make an application to the Court of Protection to become a Deputy.
A Deputy is a person appointed by the Court of Protection to manage another’s affairs.
When is a Deputy required?
When a person can no longer deal with their affairs due to a lack of mental capacity, the Court of Protection can appoint a Deputy to act on that person’s behalf. Lack of mental capacity is most commonly caused by dementia in old age, but can also be caused by illness (physical or mental), accidents and addiction to drugs or alcohol.
What Types of Deputy are there?
There are two types of Deputyship:
Property and Financial Affairs – covering finances, bank accounts and ownership of property.
Personal Welfare – covering how the person is looked after and what medical treatment they receive.
Personal Welfare applications are rare as it is usually expected that family and medical professionals should be able to agree about care and medical treatment. Currently less than one in three applications to the court are successful.
Why not use a Lasting Power of Attorney?
The two types of Deputyship grant very similar power to the two types of Lasting Power of Attorney so why not use these instead?
While this would be much cheaper, quicker and more flexible, a Lasting Power of Attorney can only be prepared when someone still has the mental capacity to agree to it. If there is no mental capacity then a Deputyship application is usually the only option left, which is why we strongly recommend putting Lasting Powers of Attorney in place before they are needed for future peace of mind.
Assessing Mental Capacity
If there is any doubt over an individual’s mental capacity then we recommend arranging a professional assessment in advance of completing any forms. If the assessor finds mental capacity then a Lasting Power of Attorney can be promptly prepared before any further deterioration in condition, otherwise a Deputyship application will be required.
Deputies are usually relatives or close friends of the person lacking capacity, but this isn’t a legal requirement.
A Deputy must be:
- A person aged 18 or over who has mental capacity; or
- A professional deputy appointed by the court; or
- A holder of a specified office or position such as a director of adult social services.
Can more than one person be a Deputy?
More than one Deputy can be appointed, and there are two ways this can happen:
- Joint Deputies – all the Deputies must make decisions together and cannot decide alone. For example, when opening a bank account all Deputies would have to attend and sign the paperwork. This is best if there are concerns that one person may act without the others knowing.
- Joint and Several Deputies – decisions can be made by all Deputies together OR by individual Deputies acting alone. This is easier if the Deputies do not live close together and can’t easily meet.
What are the responsibilities of a Deputy?
A Deputy’s responsibilities include:
- Acting in the best interests of the person they are appointed as Deputy to
- Acting with honesty
- Keeping accounts of the dealings and transactions they have undertaken
- Filing an annual report to the Office of the Public Guardian
How do you apply to be appointed as a Deputy?
The application process to become a Deputy involves several paper forms that must be submitted to the Court of Protection by post, together with a professional assessment of mental capacity. If you are applying for both types of Deputyship then two separate applications must be made.
The application process in detail:
- There are four application forms to complete:
- The main application form – this asks for:
- Details of the Applicant
- Details of the proposed Deputies
- Details of the person to whom the application relates
- Details of the Order that you are asking the Court to make and why you are asking the Court to make it
- Details of at least three people who will be notified that the application is being made, so that they can apply to join the proceedings or object if they wish. There is a specific order of importance starting with the person’s spouse, civil partner, long term partner, parents, children and siblings in that order
- The supporting information form – there are different versions for a Property and Financial Affairs application and a Personal Welfare application. Here you include details of the income, expenditure and assets of the person lacking capacity if you are making a Property and Financial Affairs application.
- The professional assessment of mental capacity form – this must be completed by a GP, psychiatrist, mental health practitioner, social worker, psychologist, nurse or occupational therapist. If the assessor decides that the person does have mental capacity then the application will be automatically refused by the court. As noted earlier, it should then be possible to apply for a Lasting Power of Attorney – please follow the link to our Lasting Power of Attorney page for more information.
- The Deputy’s declaration form (one per Deputy if there are more than one) – the potential Deputies must provide personal and financial information to justify that they are suitable to be appointed, for example confirming that they are not bankrupt.
- The forms must then be sent together with the court fee (£371 at the time of writing) to the Court of Protection. If you are applying for both types of deputyship you must pay two Court fees. It may be possible to claim the Court fees back from the person who is being looked after – this is at the Court’s discretion.
- The Court will send back a stamped copy of the application confirming that your application has been issued. This should in theory happen within a week of the Court receiving it, but it normally takes longer in practice.
- Within 14 days you must now tell (“serve”) the person who will be the subject of the Deputyship Order. You or your representative should visit them and explain:
- Who is applying to be their Deputy
- That the application concerns their lack of capacity to make certain decisions
- What happens if the Court makes the order and how it would affect them
- Who the proposed Deputies are
- How to get advice if they need it
You must give them a notification form which you have filled in, together with an acknowledgment form which allows them to give an opinion or dispute the application. You should also provide any other relevant documents.
- With the same 14 days you must also notify (by post, fax, email or in person) the three or more people you have listed on the main application form to be notified about the application. You must provide them with a notification form which you have filled in, together with an acknowledgment form which allows them to give an opinion or dispute the application. You should also provide any other relevant documents.
- Within 7 days of serving all these documents you must send notification forms to inform the Court that the notifications have been carried out correctly.
- After a 14 day wait to allow for any objections, the Court will review your application. They will then contact you to advise whether:
- Your application has been successful or rejected
- You need to provide a financial security bond before they will appoint you as a Deputy
- They need further information, for example from Social Services
- They require a Court hearing to gather more information. This is unusual for Property and Financial Affairs applications
- If you receive a notice of hearing, you must visit the person who will be the subject of the Deputyship Order within 14 days and at least 14 days before the hearing date. You must complete and give them a notification form which notifies them of the hearing date and explains what is happening.
- If there is a hearing you will also need to pay the Court a hearing fee (£494 at the time of writing).
- If the Court has requested a financial security bond then you will need to pay the money to a security bond provider before the order will be granted. This is a form of insurance to protect the person who’s finances you are controlling. The amount you pay depends on the value of their assets and how much you are controlling.
- Once the application has succeeded and any bond has been paid, the Court will make an order appointing the Deputies.
- When the Order is granted, you must tell the person the application relates to, that it has been granted and its effect. The Court must be told that this has been done.
- You can then start acting as a Deputy. You will need to send official copies of the Court order to financial institutions such as banks and building societies before they will allow you to access the account holder’s finances.
How long does a Deputyship application usually take?
In normal times we advise that the process of becoming a Deputy is likely to take at least 4-6 months. At the time of writing the Courts are experiencing serious delays and it is taking much longer than this. We are happy to advise on the current situation if you contact us for help. While the Court deadlines are relatively short, you will need to obtain the capacity assessment, answer any queries raised by the Court and wait for them to respond to anything you send them. If there are objections to the application or if a hearing is needed then the process will take longer still. In practice we advise that the likely timescale is 9-12 months.
During the delay, the person who is the subject of the application may be in a difficult position where they are unable to manage their finances or make important decisions. This is another reason to consider a Lasting Power of Attorney at an earlier stage in life.
What are the annual responsibilities of a Deputy?
You must submit an annual report to the Office of the Public Guardian (“OPG”) explaining the decisions you’ve made as a Deputy. You will need to keep accounts of how you have managed the person’s finances so you should keep records of all your activities, expenses and especially any gifts that you have made which must be both “reasonable” and affordable.
How are Deputies Supervised by the Office of the Public Guardian?
The OPG may contact or visit you to ensure that you are being an effective Deputy. There will normally be a higher level of “general supervision” in the first year, reducing to “minimal supervision” in subsequent years if they judge that you are performing your duties adequately.
How much does a Deputyship cost each year?
You must pay the OPG an annual supervision fee while you are a Deputy. General supervision is currently £320/year at the time of writing and minimal supervision is £35/year.
When does a Deputyship Order come to an end?
A Deputyship Order can end in several ways:
- The person dies
- The person regains mental capacity, for example where they recover from an incapacitating illness or accident
- You apply successfully to the court to stop being a Deputy
- The Court removes you as a Deputy, for example where they believe that you are not acting in the best interests of the person, or have been mismanaging the person’s financial affairs
How can Backhouse Solicitors help?
Our detailed guide shows that applying to the Court of Protection for a Deputyship Order is a paperwork-heavy, costly and lengthy process. You will required to prove your suitability and may face objections from the Court, the person you are applying for and perhaps members of their family. This is likely to be both stressful and upsetting, particularly where you are wish to be a Deputy for a relative or close friend who no longer has mental capacity.
If you don’t want to face this task alone, or have started and are struggling to complete it, then we are here to help. From instructing the right medical professional to assess your loved one, to completing the relevant forms and meeting the Court of Protection’s strict timescales, the friendly, expert team at Backhouse Solicitors are here to help you every step of the way.
To find out more, contact us today to book a FREE 30 minute consultation with one of our solicitors and start getting the help you need.
Tel: 01245 893400
Visit: 17 Duke Street, Chelmsford, CM1 1JU
Or send us a message through the Contact Us page on this website.