The loss of a person’s mental capacity is not only upsetting but can also result in practical difficulties in dealing with their affairs. When a person lacks mental capacity they can no longer enter into contracts and are often unable to deal with their own financial affairs including, for example, the sale or purchase of a property.
It may have been possible for the person to make a Lasting Power of Attorney before the loss of their mental capacity. If this is the case then the person(s) appointed to act on their behalf are able to do so. However, in cases where mental capacity is lost and there is no Lasting Power of Attorney the only option available for someone to hold legal authority to act on their behalf is to apply for what is known as Deputyship.
Topics to be answered in this article
What is a deputyship?
Deputyship is a role appointed by the Court of Protection which enables a person to look after the affairs of someone who has lost mental capacity. This can be for either Property and Financial Affairs or Health and Welfare Matters, and occasionally both.
As a property and financial affairs deputy, you would handle matters such as paying the person’s bills or organising their pension, whereas as a personal welfare deputy, you would make decisions about medical treatment and how someone is looked after.
What’s the difference between a deputyship and an LPA?
Lasting Powers of Attorney and deputyships differ in several crucial ways, the key difference is that with an LPA, the individual chooses a person to act on their behalf, whereas with a deputyship, the Court of Protection appoints a deputy.
To make an LPA, you must have the mental capacity to do so, and therefore you nominate someone to act on your behalf while you still have the mental capacity to make this decision.
However, with a deputyship, the proposed deputy applies to the Court of Protection because the person on whose behalf they will be acting already lacks mental capacity, making it largely a difference of timing.
What are the different types of deputy?
In some circumstances the Court will appoint a Deputy specifically to deal with the majority of decisions relating to that person’s health and welfare. However, this is unusual because the Court prefers that where possible any decisions are made on a best interest basis and will only become involved if this is not possible. Sometimes the Court might grant a single Order allowing the Deputy to deal with a specific issue in relation to care and treatment. For the purposes of this article however we will concentrate on the property and financial version.
Who can apply to become a deputy?
In most cases, it will be a family member or friend who will apply to be appointed as Deputy for the person lacking mental capacity. However, if there are no such people available to apply the Court might appoint a local authority Deputy or a Panel Deputy (a solicitor from a Court appointed panel of firms who can take on the role).
What is the process?
Before an application can be made a mental capacity assessment must be carried out by a professional. This is because the Court of Protection can only make an Order if someone lacks mental capacity and it is this assessment that they will consider when making their decision. The fee for this assessment can range from nothing to several hundred pounds depending on who carries it out.
The application is paper based provided that it is not contested and involves the completion of a large number of forms. These provide the Court with a clear indication of the situation – details of the person who has lost mental capacity and their assets, details of the person applying to become Deputy, family background details etc. The proposed Deputy also has to declare that they are a fit and proper person to take on the role.
A court fee (currently £371) is payable when applying unless an exemption or remission applies which will depend on the circumstances.
Once the application is received by the Court, it requires interested parties to be notified of the application. This is to ensure that any objections or concerns can be raised before an Order is made. If this happens the Court may order a Hearing at which those issues can be addressed. If this happens it will impact on the costs of the application.
The final stage of the application process requires the Deputy to take out a Deputy Bond. Essentially this is an insurance policy to protect the funds of the person under the Deputyship and this needs to be renewed on an annual basis. The cost of this will depend on the value of the estate.
Once an Order is made, unless exemptions apply, there will be various fees payable – some as a one-off and others on an annual basis. These are paid from the funds of the person lacking mental capacity. Ordinarily, the appointed Deputy will be required to report back to the Court of Protection on an annual basis.
How long does the application process take?
Unfortunately, the process usually takes at least six months and sometimes longer depending on workloads at the Court and whether or not the application is contested or further information is required.
There are options available to apply for interim authority from the Court where there is an urgent need, e.g. where access to funds is needed to pay the person’s care fees, but these can still take quite a long time to obtain. Until an Order is made, no one will have the authority to deal with the person’s property and financial affairs which could easily result in bills going unpaid.
How much does it cost?
The cost of applying for a Deputyship for Property and Financial Affairs will usually be in the region of between £2,000 and £4,000 plus VAT but will depend on the circumstances.
Why is it recommended to use a solicitor?
Although it is not essential that a solicitor is used when applying for a Deputyship, using a solicitor is highly recommended. This is because the solicitor will be able to ensure that the correct wording is included within the Order to enable the Deputy to carry out all relevant duties. They can also ensure that any additional court requirements are met in certain circumstances e.g. sale of jointly owned property, which might not be apparent to a lay person.
How can Goughs help?
Our team here at Goughs are experienced in assisting people with Deputyship applications and can deal with all the required paperwork. We can also assist with the preparation and/or registration of Lasting Powers of Attorney and are happy to have an initial chat with you if you would like to discuss your circumstances.
Many of our specialists are Dementia Friends and Dementia Champions, meaning that they are well experienced in dealing with cases where a loved one has lost mental capacity. The team is here to help, and every individual case is different.