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Guide to Deputyships; your questions answered

View profile for Caroline Johnstone
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A loved one losing the capacity to manage their property and affairs is a distressing time when you will not only have to adapt to a new way of living, but also perhaps step in to assist in the running of their lives.  If they don’t have a Lasting Power of Attorney (LPA) you will have to begin the potentially complex and difficult process of applying to be a Deputy. In this guide, Associate Solicitor in our Private Client team, Caroline Johnstone, answers the top questions regarding Deputyships, explaining what a Deputy is, the differences between a Deputyship and a Lasting Power of Attorney (LPA) and more.

What is a Deputy?

As a Deputy, you are the individual responsible for managing the affairs on behalf of someone who has lost the mental capacity to do so themselves. If a loved one does not have an LPA and loses their mental capacity to manage their property and finances, you will have to apply to the Court of Protection for a Deputyship Order so that you can do it for them.

What will I be responsible for as a Deputy?

Depending on the circumstances, there are two types of Deputyships that can be applied for that match the corresponding LPA. The most common is a property and affairs Deputyship which will allow you to make legal decisions regarding property and finances, such as:

  • Paying any bills,
  • Receiving income or dividends from investments,
  • Selling any properties if needed.

The other type of Deputyship is a personal welfare Deputyship which will allow you to make decisions regarding medical treatments or care on behalf of your loved one. These types of Deputyships are not often issued as those who are already providing care for the individual are able to make the decisions that are in their best interests.

Alongside these considerations, as a Deputy you will also have a number of legal responsibilities. You must ensure that you act within the boundaries of the Mental Capacity Act of 2005, which are:

  • all adults have the right to make decisions and it is assumed they have capacity to do so, unless it is proven they do not,
  • you must always act in the ‘best interests’ of a person who has lost their capacity,
  • a person has the right to make unwise decisions, even if some may consider those decisions as eccentric and not be seen to have lost capacity due to these decisions,
  • the appropriate support must be provided for an individual before they can be considered unable to make their own decisions,
  • any action or decision made for them or on their behalf should be as unrestrictive to their basic rights and freedoms as possible.

What am I not allowed to do as a Deputy?

While becoming a Deputy will give you the ability to make a number of decisions, there are still things that you will not be able to make decisions on. These are:

  • choosing who they can speak to,
  • gaining ownership of any money or property in your name on your loved one’s behalf,
  • assuming your loved one’s position as a Trustee,
  • getting a Will written or updated or make a Trust in the name of your loved one,
  • turning down any medical treatment that would sustain your loved one’s life,
  • allowing your loved one to be restrained, unless it is to stop them being harmed,
  • benefitting personally from your loved one’s condition,
  • distributing gifts unless the Court order specifies you can.

The level of capacity your loved one has should also guide how you act on their behalf. Although they may not be able to make important financial or medical decisions, could they make simple daily decisions such as what they would like to do with their day or what they would like to eat?

Who can become a Deputy?

Anyone over the age of 18 can apply to become a Deputy, but the level of supervision you will be granted will be determined by a number of things:

  • the value of the estate and how complicated it is,
  • if you have had past experience as a Deputy,
  • what sort of support network you will have to help you,
  • the nature of the decisions you will have to make & how serious they will be,
  • your relationship with the person you wish to become a Deputy for.

Regular checks will be made to make certain you are following the Mental Capacity Act 2005 and that you are acting in your loved one’s best interests. You will need to make an annual report detailing the decisions and transactions you have undertaken and so it is vital to ensure you have all the relevant documents and correspondence. There may also be visits from the Office of Public Guardian to confirm you understand your duties and are carrying them out correctly.

How do I apply to become a Deputy?

There are a number of steps to making an application to become a Deputy. First, there are forms that you must complete and return:

  • An application form, called a COP1,
  • An assessment of capacity form, called a COP3,
  • A Deputy’s declaration, or COP4,
  • An information form, which will either be a COP1A if you are applying to become a property and affairs Deputy, or a COP1B if you’re applying to be a personal welfare Deputy.

In your application, you must also name at least three people who know your loved one. This can be another relative, a doctor or a social worker if they have one. Once you have submitted your application, it is important that you then notify, if you haven’t already, the loved one you are applying to become a Deputy for and the three people named in your application as knowing your loved one.

Can there be multiple Deputies?

It is possible for there to be multiple Deputies, but this would depend on your specific set of circumstances. There are two types of multiple Deputyships:

  • Joint Deputyship – all Deputies would have to unanimously agree on any decisions made,
  • Jointly and severally – deputies can make certain decisions by themselves and others would have to be agreed on with other Deputies. Which decisions could be made individually and which ones would need a consensus would be specified.

How long does the application take?

Applying for a Deputyship order can take from anywhere between four to six months. In addition to the forms detailed previously, you will need to gather a number of documents to make an application, which include:

  • details of the applying Deputy/Deputies,
  • the type of application,
  • detailed information surrounding the circumstances and financial situation of the individual,
  • assessment of the individual’s capacity in order to corroborate your claim they have lost mental capacity to make decisions for themselves,
  • Deputy’s declaration – in this you will need to show you are capable of being appointed the individual’s representative.

How quickly the application will be processed can depend on a number of considerations, such as:

  • whether the application is contested,
  • if the Court needs more information to make their decision,
  • if you need permission to make the application,
  • the time it takes to inform all interested parties about the application.

If I become a Deputy, who should I inform?

Once you have been issued a Deputyship Order, there are a number of organisations you should inform so you can deal with them on behalf of your loved one, these include:

  • the individual’s accountant, if necessary,
  • the payer of any private pensions,
  • the solicitor that is in possession of their Will and/or property deeds,
  • banks or building societies,
  • the local authority,
  • the Department of Work and Pensions.

How can a Lasting Power of Attorney help?

An LPA is one of the most important legal documents an individual can have to plan for their future. It will make clear who can manage their affairs should an individual lose the capacity to do so themselves. If your loved one does not have an LPA, a Deputyship would need to be applied for, which can be costly and complex.

There are two types of LPAs:

  • A healthcare decisions LPA,
  • A financial decisions LPA.

A healthcare decisions LPA sets out arrangements for where the individual may live, any daily care they may need and any medical treatments. A financial decisions LPA will set out guidelines on decisions regarding any investments, movements of any cash and any sales of property.

By getting an LPA written, it will mean that you get to decide who will look after your affairs if you are no longer able to.

Becoming a loved one’s Deputy is a task that carries a lot of responsibility at a time where you will be understandably distressed. While applying to become a Deputy will allow you to support your loved one during their time of need, the best way to allow you and your loved one to adjust to this new way of life would be to arrange a Lasting Power of Attorney to ensure the right person will be acting on their behalf should they lose the capacity to do so.

If you would like more information on getting a Lasting Power of Attorney written, or you are considering applying to become a Deputy, you can call Caroline on 01329 222075 or email carolinejohnstone@warnergoodman.co.uk to arrange an appointment.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.