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What is a Deputy?
A Deputy is appointed by the Court of Protection to make decisions on behalf of someone who has lost or lacks capacity to make decisions for themselves.
A Deputy is needed when the person lacking capacity did not or cannot make Lasting Powers of Attorney appointing someone of their choice to make decisions for them.
Becoming a deputy is a big responsibility.
What can a Deputy do?
The Order appointing you will set out your authority and your decisions need to fall within that. A Deputy has to follow the rules set out by the Mental Capacity Act 2005. The main focus is that you need to make decisions based on what you believe the individual would want, not necessarily what you would do yourself.
As a Deputy, you are representing an individual, therefore every role as a deputy is different. Some lead straightforward lives, others more complicated. Every Deputyship role has to be tailored to the person you are representing.
Who can be appointed as a Deputy?
Any adult over the age of 18 can be appointed as a Deputy provided that they meet a number of conditions such as not having a criminal record or not being declared bankrupt.
Who’s involved in appointing a Deputy?
There are three parties involved to become a Deputy:
The Court of Protection (“COP”) – a court that makes decisions regarding an individual’s mental capacity;
The Deputy – the person or persons who are appointed by the COP to act on another’s behalf
The Individual – a person who has lost mental capacity and requires additional support
The COP grants the Deputy a Deputyship Order. This sets out the parameters in which they can act for the Individual.
Are Deputies supervised?
The Office of the Public Guardian will support you in your role but also oversee your actions to make sure you are acting within your authority.
How long will the deputy order last for?
The court order will say how long the deputyship will last for, it usually lasts for as long as the individual concerned lacks capacity. If the person stops lacking capacity, then an application will have to be made to the Court of Protection to discharge the deputy. If the person dies, the deputyship automatically comes to an end.
How much does a deputyship application cost?
The court fee alone for making a single Deputyship application is £365. Once a Deputy has been appointed there are also annual supervision fees of approximately £325.
What’s the difference between a Lasting Power of Attorney and a Deputy?
An attorney is appointed by the individual whilst they have capacity in preparation for when they lose capacity. A deputy is appointed by the Court of Protection once an individual lacks capacity.
A Lasting Power of Attorney provides you with complete control over who is appointed to make decisions on your behalf and look after your affairs as well as determining the extent of their authority.
What is the process of becoming a Deputy?
The main steps to obtaining a Deputyship Order
Application to the COP by form COP1:
1. Two types of application can be made, either Property and Affairs or Personal Welfare.
2. Substantial details of the Individual, specific details of why the appointment of a Deputy is necessary and how the Deputyship Order would benefit the Individual.
3. Certain people must be notified of the application, such as those people or body’s that have an interest in the Individual’s wellbeing or who might be affected by the Deputyship Order.
4. A statement of the Individual’s capacity is required by a professionally qualified practitioner.
5. Each proposed Deputy must complete a declaration so that the COP can assess their suitability.
6. Additional forms, depending on the circumstances, and supporting evidence must accompany the COP1.
7. Fee payable of £365
8. The COP enters into court proceedings to appoint the deputy. This includes serving documents, processing responses to the appointment of the Deputy and satisfying themselves, sometimes through a hearing, that Deputy should be appointed.
How long does it take for the Court of Protection to appoint a deputy?
Appointing a Deputy is not a quick process. If you lose mental capacity without an LPA in place, the court application take an average of around 4-6 months. In the meantime no-one will be able to make decision or access your funds to pay bills or care fees. This can cause problems should you require nursing care or if your proposed Deputy needs to sell property or investments to release funds.
If any of the people who have been notified object to the Deputyship application, then the proceedings become contested and can take many more months to resolve.
Why Do I Need A Solicitor To Appoint a Deputy?
Applying to become a deputy can be a lengthy and costly process as well as time-consuming so you may prefer to have legal advice and guidance.
We have specialist expertise in dealing with Deputyship applications and are able to advise and assist as much as possible if you require guidance on how to make an application.
We can also advise Deputies in making sure they fulfil their duties associated with their role and assist Deputies in completing their annual accounts.