We asked the experts in our Private Client Team what you need to know about Deputyships.
What It Means to be a Deputy By Dawn Moir
Becoming a deputy is a big responsibility. You are given authority to make important decisions about some-one else’s property and finances or about their personal welfare. This doesn’t however mean you can do what you like!
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.
The Office of the Public Guardian support you but also oversee your actions to make sure you are acting within your authority.
You are representing individuals and 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.
Becoming a Deputy - The Process By Annie James
There are three parties involved to become a Deputy:
1. The Court of Protection (“COP”) – a court that makes decisions regarding an individual’s mental capacity;
2. The Deputy – the person or persons who are appointed by the COP to act on another’s behalf
3. 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.
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
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.
Complications Surrounding Deputyship and Care Fees By Trish Watkins
If faced with having to make an application for a Deputyship for a loved one an already stressful time can become increasingly so where that person also has to go into care.
Deputyship Order applications for property and finances take an average of six months to be granted. Great care is needed to ensure that the relevant provisions are included within the Order to ensure that the Deputy has all the relevant authority for the particular situation. In particular where the person entering care owns a property jointly with another this can sometimes mean that a separate application to the Court of Protection is needed at the same time.
Without the Deputyship Order there will be no-one with the legal authority to access funds or deal with property. This may mean that negotiations are needed with the care provider and/or the local authority in the form of a Deferred Payment Agreement if time is needed to access funds.
Our experts can assist with guiding you through the process of Deputyship and in particular how it can impact on care for your loved ones.
How Goughs Can Support You, Now You Have Been Appointed as a Deputy By Catherine Cole
Being a Deputy for someone who lacks capacity to make decisions for themselves can be an onerous and time consuming task. The appointment usually lasts until the person lacking capacity regains that capacity or upon the death of either party or the Deputy chooses to retire.
A Deputy has only those powers which are set out in the Court Order or in any later Orders issued by the Court of Protection (COP). The powers will vary depending on the individual needs of the incapacitated person. Deputies must also follow the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act.
Deputies are supervised by the Office of the Public (OPG) who are the administrative arm of the COP. The OPG can call on a Deputy to account for their actions at any time. A Deputy must therefore keep financial records, receipts and bank statements as they will be required to file an annual account showing how funds are cared for, the decisions they have made and the extent to which they have involved the incapacitated person in those decisions.
Our Private Client Team have specialist expertise in dealing with COP matters. We can advise Deputies in making sure they fulfil their duties associated with their role and assist Deputies in completing their annual accounts.
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