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What is a deputy?
- AuthorCaroline Johnstone
Becoming a Deputy usually means that you have been appointed to manage the property and financial affairs of a loved one if they are no longer mentally able to do it themselves, and they did not have a Lasting Power of Attorney. Applying for a Deputyship Order to the Court of Protection can be a complicated process at a time when everyone will need to adjust to a new way of living. Caroline Johnstone, Associate Solicitor in our Private Client department, explains more about a Deputyship and how writing a Lasting Power of Attorney when you still can will avoid this last case scenario.
Decisions made under a Deputyship Order
In the situation where a loved one loses mental capacity, perhaps due to dementia, suffering a stroke or they have been in a life changing accident, they will need someone to manage their affairs for them. Ideally, they will have drawn up a Lasting Power of Attorney for property and financial affairs, however if this is not in place, a Deputy will need to be appointed to be legally responsible for these decisions.
Once the necessary paperwork and application has been approved, the Court of Protection will issue this person with a Deputyship Order setting out their duties. These will include making decisions regarding:
- The sale of any property
- Day to day banking transactions, including paying bills, receiving income or the dividends from investments
What are my legal responsibilities as a Deputy?
As well as adhering to the Deputyship Order, which will specify the range of your duties and the actions you can and cannot take, Deputies must also adhere to the five statutory principles within the Mental Capacity Act 2005:
- Every adult has the right to make decisions, and must be assumed to have capacity unless it is proven otherwise.
- People must be given all appropriate help before they can be considered unable to make their own decisions.
- Individuals have the right to make unwise decisions, including decisions that others may consider eccentric, and not be deemed to have lost capacity because of those decisions.
- A person acting for or on behalf of a person who lacks capacity must do so in their 'best interests'.
- Any action done for them or on their behalf should be the least restrictive of their basic rights and freedoms.
Who can apply to become a Deputy?
Anyone can apply to be a Deputy, whether they are a relative, neighbour, friend or a professional representative, but they must be over 18 years old.
Whoever becomes Deputy will be supervised by the Office of Public Guardian, with the level of supervision determined by:
- Your relationship with the person who has lost capacity
- The complexity and value of their estate
- The range of seriousness of the decisions you will need to be making
- Any past experience you may have as a Deputy
- Your support network around you
The Office of Public Guardian will also carry out checks to ensure you are complying with the Mental Capacity Act 2005 and that you are acting in the person’s best interests. You will be required to complete an annual report to record the decisions and transactions you have made. To complete this annual report, it is important that you are highly organised and keep all necessary documents and correspondence relating to those decisions. You may be visited by a Court of Protection visitor to check that you understand your duties and are carrying out your duties correctly.
The key principle for Deputies to be aware of is that they must act in the person’s best interests. If there is a dispute between family members that they have not done so, a person can have the order discharged by the Court and a new Deputy will be appointed.
How can a Lasting Power of Attorney avoid applying to the Court of Protection?
By being prepared for the future and having a Lasting Power of Attorney in place, you can rest assured that the person who looks after your affairs will be someone you trust and who you have chosen. If you do not have a Lasting Power of Attorney, this decision will be made by the Court of Protection, who may choose someone you would not approve of. Once you have lost capacity, all of your assets are frozen until the Lasting Power of Attorney is actioned and then your Attorney can conduct your affairs. The process takes longer if they have to apply for a Deputyship Order, meaning no decisions will be made until this is done.
“If you are in the unfortunate situation that a loved one has lost capacity to make their own decisions and they did not have a Lasting Power of Attorney in place, we would highly recommend you seek legal advice,” explains Caroline. “By doing so, you will better understand the process of applying to become a Deputy as well as your legal responsibilities, which can help you decide who would be the best person to be appointed as Deputy. It is always better to be safe than sorry, and while none of us like to consider what the future may bring, having a Lasting Power of Attorney is a valuable safeguard for the future giving you peace of mind while avoiding the distress and cost of having to apply to the Court of Protection.”
To find out more about writing a Lasting Power of Attorney or applying for a Deputyship Order, you can contact Caroline Johnstone on 01329 222075 or email firstname.lastname@example.org. Alternatively, you may find the below resources useful, or you can click here to read more about how we can help you.
- How long does it take to apply for a Deputyship Order?
- Court of Protection Overview
- When would a deputyship order be issued?
- The difference between a Lasting Power of Attorney and Deputyship
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.