Court of Protection – Deputyship

Unfortunately there can be situations where a person has lost the ability to manage their day to day welfare and/or financial affairs but do not have in place a valid Lasting Power of Attorney. That’s when you should contact Debbie Gibbs or Gareth Humberstone at Martin Shepherd Solicitors.

In cases like this, it may be necessary for a close family member or friend to  apply to the Court of Protection for approval on that person’s behalf to be appointed a Deputy to manage their affairs and make decisions on their behalf about day to day issues concerning healthcare, property and finance.

This process can be complex, time consuming and confusing and so we at Martin Shepherd Solicitors do our utmost to make the process understandable and straightforward.

We can assist with obtaining the medical information necessary in such an application which would be for specific matters such as authorisation to sell a property.  

Deputyship is a legal method by which decisions can be made for persons lacking mental capacity and appointment as a person’s Deputy can be used for a person who lacks mental capacity arising from dementia or following a stroke or for some other reason and who has assets that need to be administered or decisions taken about their personal welfare.

A Deputy is appointed by the Court of Protection and can apply for authority to making decisions about property and financial affairs (for example the sale and purchase of property)  use of bank accounts and/or decisions about health and personal welfare, including treatment options, although a Deputy cannot refuse consent to life sustaining treatment.

Any person over the age of 18 can be a Deputy and must declare any criminal convictions or bankruptcy arrangements to the Court of Protection when making the application.  The Court of Protection has discretion as to whether or not to authorise the appointment of a Deputy.

Powers and Duties 

The Deputy’s powers derive from the Order made by the Court of Protection. The Order may set limits on those powers and such powers must not be exceeded.  

A Deputy’s general duties are set out in detail in the Mental Capacity Act 2005, including the following, important principles:

• A person must be assumed to have capacity unless it is shown otherwise.
• A person cannot be treated as unable to make a decision until all practicable steps have been taken to help him/her, without success.
• A person cannot be treated as lacking capacity merely because (s)he wishes to make an unwise or eccentric decision.
• Any decisions made on behalf of a person must be in the person’s best interests.
• Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom.

In addition to following these general principles, the Court of Protection places numerous obligations on a Deputy including: 

• Safeguarding the mentally incapable person’s assets; 
• Obtaining and maintaining a security bond as required;
• Opening a deputyship account at a local bank or building society; 
• Claiming all social security benefits to which the person is entitled; 
• Preparing and filing accounts annually or when required; 
• Ensuring the funds are used provide the best quality of life for the person; 
• Ensuring all income is collected and bills are paid on time; 
• Arranging the safekeeping of all deeds, documents, and other valuables; 
• Keeping any property in reasonable repair, secured and adequately insured; 
• Dealing with the person’s income tax and other tax matters; 
• Notifying the Court of any change in the person’s financial situation; 
• Informing the DVLA if the person holds or applies for a driving license;
• Advising the Court if there is a likelihood of the person getting married, divorced or involved in other legal proceedings; 
• Notifying the Court of Protection if the preparation of a Will is being considered; 
• Obtaining the Court’s permission before dealing with any capital monies; 
• Informing the Court of the person’s recovery or death; 
• Paying the Court’s fees out of the person’s monies as and when requested; 
• Informing the Court of any change in the person’s address and the level of any care home fees payable; 
• Complying with all directions and orders set down by the Court. 

The Order will, as appropriate, also deal with the Deputy’s powers including matters such as;

dealing with the person’s bank or Building Society accounts; 

paying medical fees, Court fees, nursing home and other charges, 

discharging fees and debts including out of pocket expenses and solicitor’s fees;  disposing of assets  such as  furniture and household effects.  

Further applications for additional orders may be required in certain circumstances, for example in relation to co-owned property.

Costs

The Court of Protection application costs are broken down into two areas.   First, the costs charged by the Court of Protection itself.  The Court of Protection makes its’ own charges for the application and will also charge annual administration fees and require the Deputy to take out an annual security bond to insure their actions as deputy. All of these fees are recoverable from the mentally incapable person’s assets.

Secondly, the legal costs.   Whilst the Court of Protection will order fixed costs that can be claimed by solicitors for the application, these are often insufficient to meet the expenses incurred in making the application.  

Fixed costs also apply for each year of general management where there is a professional deputy. 

In complex cases these costs are approved by the Court before payment is made from the client’s resources. However, in cases where the mentally incapable person has recovered compensation as a result of an accident or clinical negligence, the cost of a professional deputy is often recovered as part of the claim.

All of these fees are recoverable from the mentally incapable person’s assets.

Termination 

A deputyship order is terminated when the person lacking capacity dies or recovers capacity, or if the Order is limited in time and expires. It can also be discharged by order of the Court of Protection or on application by the Deputy, for example if he wishes to retire or resign.

Contact Debbie Gibbs or Gareth Humberstone for further information