In the Court of Protection, a person can be appointed as a Deputy. A Deputy is someone who can make decisions regarding property, finance, health, and welfare on behalf of someone who is mentally unable to make decisions. A Deputy will only be appointed if a Lasting or Enduring Power of Attorney has not been made prior to the person (‘P’) losing capacity. Seatons are experts in court of protection work and we are the friendly professionals, known as the friendly professionals because we work hard for you whilst eliminating all of the legal jargon so that you fully understand what is going on. For more information about Deputyship Orders, see below.
Deputyship Orders – The different types of Deputy
Primarily there are two different types of deputy:
- Property and Affairs Deputy: A property affairs deputy is the most common form of deputy and deals with the person’s financial affairs. If you become a Property and Affairs Deputy you must sign a declaration which will outline your personal circumstances and include the tasks and responsibilities, you have as a deputy.
- Personal Welfare Deputy: Less commonly, the Personal Welfare Deputy is for when a person lacks the capacity to make decisions regarding their care and treatment.
We have experience dealing with both types of deputy. We work hard to ensure that you get the right deputyship to suit you and we will give you all the information you need to make an informed decision.
What powers will a Deputy have?
A Deputy can only act under a court order from the Court of Protection. The responsibilities of a Deputy will be set out by the court. The powers of the Deputy derive from the Deputyship order that is made by the Court of Protection. As well as the responsibilities set out by the order, the Deputy must always act in the persons best interests.
Guidance for how a Deputy should act is found in the Mental Capacity Act 2015.
- A person will be presumed to have capacity until it is established otherwise.
- A person will not be treated as unable to make decisions unless all practical steps have been taken to help them without success.
- A person has the right to make unwise or eccentric decisions. Doing so will not result in them being treated as unable to make a decision.
- An Attorney or Deputy must make all decisions regarding the person in their best interests.
- A person’s liberties and freedoms must not be affected by decisions made and regard must be had to whether the purpose of the action can be achieved in the least restrictive way possible.
Whilst the Deputy will have freedom to decide what is best for the person, there are various safeguards which ensure that the person is not defrauded. At Seatons we will ensure that you fully understand what your roles and responsibilities are and we will take the time to explain what is required of you and what you can or cant do.
Other responsibilities of the Deputy
Whilst the primary function of the deputy is to ensure that the person’s best interests are cared for. The various safeguards which are in place to protect P from fraud mean that the Deputy must keep a record of and submit the following each year:
- A record of all accounts and spending
- A record of all decisions made by the Deputy
The Court may include other stipulations to the order and require you to submit other documents but the two above are the main conditions to the Deputyship. This is done to limit Deputies from fraudulently taking money.
Deputyship Orders – Professional Deputies
In some circumstances, it may be beneficial to appoint a professional deputy to handle affairs. These circumstances arise due to large estates or large, complicated family affairs. For example, a high number of closely, and potentially conflicted interests who may take offence to one person being appointed over another. In these circumstances the professional costs of the deputy can be recovered from the estates.
If you do not feel comfortable with handling the affairs of another person then do not hesitate to contact us and we can arrange for a professional deputy.
Who can apply?
Anyone over the age of 18 can apply to be a deputy. The Deputy is often a close relative of the person who needs help making decisions. If you want to become a property and affairs deputy you may have to prove you have the necessary skills to undertake this role. The Court can appoint 2 or more deputies to any given person.
If there is more than one deputy, then the court will inform you of which kind of joint deputy you are as there are two kinds.
- Jointly: Jointly means that you must come to each decision and agree on a decision together.
- Jointly and severally: Deputies can make decisions on their own or with the assistance and agreement of other deputies.
If no-one is available or volunteers for the court to appoint then they will appoint a professional deputy also known as a panel deputy who will be selected from the Office of the Public Guardians list.
When you are appointed as a Deputy by the Court of Protection you will be expected to take out a Security Bond, in other words an insurance policy. This protects the Public Guardian from instances of fraud. The main provider of these bonds is a company called Howden Security Bonds. However, if you are to use another insurance provider it is important to check that they meet the requirements of the Office of the Public Guardian. The cost of the bond will vary however quotes can be attained easily online.
What is the process?
There are several steps before you will become a deputy. Firstly, we will arrange for a mental capacity assessment to be carried out. This assessment is crucial as if the person to whom the application relates to is found to have capacity then you will be unable to continue with the deputy application. If the person is found to not have the capacity, then we will continue and apply to the Court of Protection on your behalf. Once accepted there is a period given by the court where you will need to notify various interested parties. Once this period has passed the other parties will have 14 days to respond should they have any issues. If this time passes, then the Deputy will be granted. There is an option for an expedited (sped up) version of events if there is evidence that there will be consequences of the Deputy not being granted in time.
Why Choose Seatons?
At Seatons we have a team of experts in the Court of Protection. We have acted for clients across the country and have seen a great deal of success. We understand that this can be a difficult time for you and your family and will do everything in our power to empathise and help you every step of the way. If you would like a free, no obligation chat over the phone, do not hesitate to call one of our advisors today on 0800 3 10 11 12.
Deputyship Orders And The Court Of Protection
Hello, my name is Adrian Chambers and I deal with Court of Protection matters in our Corby office. If you need to make an application to the Court of protection on behalf of a loved one then I can help.
I can provide you with a fast, friendly and cost effective legal service.
All you need do is simply pick up the phone and give us a call on 01536 276300 or use our online enquiry form for a no obligation chat and we can take things from there.