A Deputy can be appointed by the Court of Protection to make decisions about a persons affairs where that person has lost capacity to make decisions for themselves. This will become necessary if the person lacking capacity has not signed any previous power of attorney, or if an existing power of attorney they have in place is no longer valid.
When is a Deputyship Application necessary?
A Deputyship Application can be made in relation to property and financial affairs or a person’s health and welfare.
The Court of Protection can make decisions and/or appoint a Deputy to make ongoing decisions in the best interests of those who lack capacity.
If appointed as a Deputy, you will be able to make decisions on behalf of the person who lacks mental capacity. Such decisions must be made in accordance with the Mental Capacity Act 2005 and the Code of Practice. Any decisions are restricted to the powers given in the Order from the court.
Who can be a Deputy?
Anyone over the age of 18 can apply to become a Deputy. When applying you must declare any criminal convictions and/or bankruptcy arrangements. You must also declare any possible conflicts of interest (for example if you live in the house owned by the person who has lost mental capacity, or you own assets together). Depending on these circumstances this may lead the court to turn down your application. Whilst we cannot guarantee the decision of the Judge making the Order, it is better if you let us know about anything you think may prejudice your application at the outset.
A Deputy may be a spouse, family member, friend or professional. The role of a Deputy can be onerous and should not be underestimated. You should only consider applying for the role if you can give the matter the time that it needs.
Recent court decisions have indicated the Court of Protection’s reluctance to appoint anyone other than a professional deputy when there are large sums of money to deal with.
What Powers will I have as Deputy?
This depends. 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.
Application to Court
This requires a series of forms to be completed with details of the person who lacks mental capacity, their finances and/or family and relationships. Various persons connected to the person who lacks capacity will also need to be named. The application is then submitted to court.
The court will need to satisfy themselves that they have jurisdiction to deal with the application. The application must therefore be accompanied by a Mental Capacity certificate setting out the level of mental capacity the individual has to deal with their own affairs.
Persons to be notified, respondents and objections
When the application has been issued by the court, it is then necessary to notify the person whom the application is about, that an application has been made. They then have the opportunity to object to the application.
In addition, other people who are close or connected to the individual that is the subject of the application should be notified. They also have the opportunity of becoming involved in the proceedings especially if they have concerns regarding the proposed deputy.
The Official Solicitor
If the application becomes contentious due to objections raised by notified persons or respondents, then an Official Solicitor may be called to represent the person to whom the application relates. Objectors should also get their own legal representation.
Application costs
The court application fee is £371 and then a further £494 if a hearing is necessary. There are fee remissions available which may reduce the fees down to £0.
The general rule in property and financial affair cases is that all parties legal costs, the Applicant and Respondents will come out of the funds of the Individual who lacks capacity, this also includes the Official Solicitor’s costs.
In health and welfare cases the general rule is that each party pays its own costs.
The court can depart from either rule if it feels that a particular party has acted unreasonably or the circumstances dictate.
Timescale for application
The timescale for an application will depend on whether the application is contentious, and if so, whether there is a need for a hearing. However, even in uncontested application, the timescale for non urgent applications are 1 year, timescales for urgent up to 6 months, 4 months for order to be made and one month for order to be sent out
There is an emergency procedure and an interim directions Order can usually be issued within five or six weeks of submission of the original application.
Why choose Trethowans?
We have expertise in making a wide range of applications to the Court of Protection and aim to support and assist you throughout the whole process.
Trethowans’ Private Client Team are recommended in the legal 500 2022 UK Guide.
Our team of experienced and approachable lawyers are highly experienced when it comes to Deputyship applications to the court. Call to talk with one of our team today on 0800 2800 421
