What is a Court of Protection Deputyship Application?
When someone loses mental capacity and they are unable to deal with their financial affairs or they are unable to make decisions for
themselves in relation to their health & care, and they do not have a valid
Power of Attorney in place, then a special application will
need to be made to the Court of Protection known as a “Deputyship Application”,
for an individual
/ professional body ( if there was no one suitable that could act ) to be appointed as their Deputy.
When
someone loses mental capacity, they will not
have the capacity to decide who is to be given authority to act for them and
therefore, they would have no control over who is to be appointed as their
Deputy; as such, anyone could apply to be appointed. This means that a
governmental body such as Social Services or any family member or any friend
could apply.
When appointed, the Deputy would be then be able to act, and they must always do so, in the best interests of the person who lacked capacity.
A Deputy can be appointed to make either financial decisions or health and care decisions and more than one person can be appointed as each type of deputy.
If a
decision needed to be made in respect of
both financial decisions and health decisions, then 2 separate
applications would need to be made to the Court of Protection, and this would
result in 2 lots of fees being payable.
The
process in having a Deputy appointed is much more expensive and time-consuming than
that of preparing a Lasting Power of
Attorney. ( a Lasting Power of Attorney can only be made by someone, when they
have the required mental capacity ).
In
situations where there are no family members or friends who can be appointed as a Deputy, or there is a disagreement as to who should
be appointed as a Deputy, the Court of Protection could decide to appoint a Panel deputy who is a
neutrally appointed professional, ( which
is usually a firm of specially appointed
Solicitors ).
The
powers granted to the Deputy under a Deputyship Order would be determined by
the Court of Protection and the Order
itself would dictate what powers and authority the Deputy has.
In
the case of a property and financial affairs deputyship, the Order would allow
the deputy to take possession or control of property and affairs and to
exercise the same powers of management and investment as they would have as
beneficial owner.
Some
of the responsibilities that the Deputy would have under this type of Order,
include ( but is not limited) to the following:
- Accessing bank accounts;
- Paying bills;
- They are able to deal with any financial institution and or financial advisor;
- They can apply for means tested benefits or they can arrange to have existing benefits payments reviewed.
Should a Deputy wish to sell an existing property or purchase a new property, then an addition application (which would result in further costs and delay) may need to be applied for.
Health and Care Deputyship applications are
only granted in very limited
circumstances, as the Court of Protection is reluctant to issue these types of
Orders due to the fact that these Orders give the Deputy very extensive
authority in regards to any health & care decisions that need to be made. Some of the decision making
powers that the Deputy would have under this type of Order, ( if granted ) include ( but are not limited to ) the
following:
- Deciding where and with whom that person is to
live;
- Having a say in that person's day-to-day care
( including their diet and dress );
- Having a
say on the leisure or social activities that person can take part in;
- Being able to move the person into a care
home;
- Being able to make decisions or have authority to give or refuse consent to
certain medical treatment;
- Authorise deprivation of liberty in relation to a person’s care
and residence arrangements;
It will depend on the type of Deputyship Order applied for, and the powers outlined in the Order, which will determine the level of authority granted.
The circumstances of each case are different, and it is important to let us know at the outset what you think you will need to have power to do.
We at Harvey Baker Solicitors are able to help you with this complex
process of making an application to the Court of Protection. We will provide
you with the necessary advice and guidance ranging from making the application,
to advising you of your legal
obligations as per the Order, if your
application was successful.
Our aim will be to give you peace of mind that your loved one’s
affairs will be dealt with efficiently and sensitively.
Should you require any further information on making a
Deputyship Application please call our team on 01443 565693.