BLOGS

Court of Protection and Deputyship 

It is only possible to make a Lasting Power of Attorney while you have mental capacity. If you lose mental capacity without a Lasting Power of Attorney, then an application will have to be made to the Court of Protection for the appointment of a Deputy to authorise someone to take decisions for you and to manage your finances, property and personal welfare. 

There are two types of Deputyship: one is for finance and one is for personal welfare.  To apply for financial Deputyship, you will require full detail of the person’s financial assets and their income. To apply for a personal welfare deputyship, you will need  to show strong evidence of why you need to take the decision in question on that person’s  behalf. In both cases, you will need evidence from a medical practitioner about the person’s capacity.

Criteria for becoming a Deputy

 Ideally, someone who knows the person well will be the appointed Deputy.  If you are applying to become a financial Deputy then you must be financially competent.  

What do the Court of Protection do?

The Court of Protection will decide whether the person the application relates to has mental capacity.  If not, they decide whether the person applying for an Order is an appropriate Deputy. The Court of Protection can also give permissions for one-off decisions, rather than appoint a Deputy for ongoing management of affairs.  For some decisions, even once a Deputy is appointed a further Order is required to authorise the Deputy to take certain steps on behalf of the person e.g. selling their home.  

Acting as a deputy 

The Mental Capacity Act 2005 sets out a Deputy’s duties. A Deputy has a duty to act in the best interests of the person they represent. The Deputyship order will set out the scope of authority and the decisions the Deputy is allowed to make.  

If you are acting as a Deputy you must ensure all the person’s finances are kept completely separate to your own. You must also take note of all the actions that you make on their behalf. You are required to write a yearly report and you could be visited by someone from the court of protection. Deputies will continue to be supervised by the Court of Protection throughout the Deputyship.

Applying for a Deputyship Order can be an expensive and time consuming process, so best advice is to complete a Lasting Power of Attorney when you are in good health as this will be a cheaper and easier process, and most importantly, allows you to decide (rather than the Court) who should help you if you lose capacity.  .  If you prepare a Lasting Power of Attorney while you are well, your family or friends can be ready and prepared to help should  you need it, suddenly.