If a person is unable to issue a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), a court of protection deputyship is a way to obtain the legal right to act on their behalf. This person would be referred to as a deputy. There are two deputyships for different types of decisions: one for decisions about a person’s property and finances, and another for decisions regarding their wellbeing.
In most cases, a deputy is a friend or relative of the incapacitated individual, but in rare instances, it may be a lawyer, accountant, or other court-appointed expert.
Professional deputies charge a fee for their services, which is normally covered by the client’s funds. To become a deputy, you must be at least 18 years old and consent to your nomination. In this article, court of protection deputyship, we take a look at these issues in more depth.
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What is the Court of Protection?
In accordance with the Mental Capacity Act, the Court of Protection oversees decisions and proceedings. If someone needs the Court’s authorization to make decisions about your health, welfare, finances, or property, you or someone aiding you must file a petition.
The court can make decisions about:
- Whether an action to be performed on your behalf is appropriate when you lack the capacity to take it yourself — the court can evaluate whether they feel you have the mental capacity to make a specific decision or whether something is in your best interests.
- Disputes that cannot be resolved by other means, such as by employing an independent advocate for mental competence.
- Situations where multiple decisions must be made on your behalf, as opposed to a single decision.
- Disputes over the authorization for the deprivation of liberty safeguards or their application.
- Removing an attorney or deputy appointed under a lasting power of attorney.
- In the absence of an attorney or deputy, your healthcare or personal care.
- Whether an advance decision or Lasting Power of Attorney is legal, and whether its meaning is contested.
- Whether a deprivation of liberty safeguards permission was issued lawfully or settling a dispute regarding the use of safeguards against you.
The Court must always act in your best interests when making judgments for you.
Court of Protection Deputy Orders
The Court of Protection may issue two different sorts of Deputy Orders:
- Property and Financial Affairs Deputyship Orders: These orders authorise someone to manage or take charge of an incapacitated person’s financial affairs, ranging from simple tasks like paying the vulnerable person’s bills and managing their pension to more complex tasks like buying, selling, and adapting properties; investing large sums of money; and regularly reviewing the health of portfolios and arranging care packages.
- Personal Welfare Deputyship Orders: These orders authorise a person to make significant health and welfare decisions, such as discussing treatment with doctors and determining whether to continue life-sustaining care, as well as deciding where the incapacitated person should live.
Financial and property concerns are handled differently by the Court of Protection than health and welfare issues. If a person lacks the mental capacity to manage his or her own finances, the court will typically grant applications to appoint a Deputy to make choices that the incapacitated person is unable to make.
However, the Court of Protection is far more circumspect when choosing a Personal Welfare Deputy. When a person lacks the capacity to make their own welfare decisions and there is a dispute between family, friends, and public entities such as the Local Authorities or NHS Trust over what is best for them, the Court of Protection will typically issue a one-time Order addressing the particular issues at hand.
Permitting a single individual to make decisions on a particular issue is a significant directive with far-reaching consequences. In lieu of designating a Deputy to make decisions, the law prefers that the Court of Protection renders individual rulings in particular circumstances. In the majority of property matters, a series of ongoing decisions will be made.
Does the Deputy have full authority over the individual’s affairs?
No, the deputy’s authority is limited to the terms of the court order. They must also adhere to the guidelines outlined in the Mental Capacity Act of 2005 and the accompanying Code of Practice.
How long will the process take?
It can take around 6 months to appoint a deputy. Even more time may be required if the court requires additional information to decide the application. To avoid delays, it is crucial that all paperwork is properly filled out and that the court receives all pertinent information at the outset.
In really urgent situations, you might petition the court for an interim injunction, for instance to access funds to pay off debts.
Are Deputies supervised?
The Office of the Public Guardian (OPG) supervises deputies, and deputies are required to submit an annual report to the OPG detailing the decisions they have made and the money they have spent. The deputy may delegate the preparation of the yearly report to a lawyer or accountant.
How long does the deputy order remain in effect?
The court order will specify the duration of the deputyship. If the individual regains capacity, a petition to discharge the deputy must be filed with the Court of Protection. If the individual dies, the deputyship terminates automatically.
What if I disagree with the ruling of the Court?
You may be able to appeal a Court of Protection ruling to the Court of Appeal; but, you may require permission to do so. If you wish to contest a ruling, you should consult with a Court of Protection-specialized solicitor.
Can anyone apply to the court of protection?
Yes, anyone can apply.
If you have a question that the Court has the authority to decide, you may file a petition. You do not need authorization to do this if you are the subject of the court’s ruling and you are over the age of 18. If you are under 18, your legal guardian would apply, and they might do so without your permission.
Without authorization, your solicitor, deputy, or anyone designated in a court order pertaining to the subject could also apply. Family members, hospital trusts, Clinical Commissioning Groups, and local councils may also apply, but only with Court approval.
If someone takes a legal action on your behalf to the Court of Protection due to your lack of ability, you should still be included. You will be required to hire a solicitor, but if you are unable to do so, the court may appoint a representative on your behalf.
How we can help
We have a proven track-record of helping clients with court of protection orders. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact our Private Client Solicitors
It is important for you to be well informed about the issues and obstacles you are facing. However, expert legal support is crucial in terms of saving you money and ensuring you achieve a positive outcome.
To speak to a member of our new enquiries team today, simply call us on 0345 901 0445 or click here to make a free enquiry . We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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