You may be faced with helping someone close to you when they are unable to manage their affairs due to injury or illness. If they have set up a Lasting Power of Attorney or an Enduring Power of Attorney, these can be used to deal with all the necessary decisions in accordance with their wishes.
However if a Lasting Power of Attorney or Enduring Power of Attorney has not been set up, it would be necessary to apply to the Court of Protection for a Deputyship order where a Deputy is appointed.
A Deputy is a person appointed by the Court of Protection to manage the property and affairs and, less frequently, the personal welfare of another person, who lacks the mental capacity to manage their affairs themselves. A Deputy can only act under a court order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity.
Once granted by the Court of Protection, this order will enable their affairs to be managed, for example money to be used to pay care fees.
We have set out brief details of how to apply to the Court of Protection for the Deputyship order. This can be done by a family member, trusted friend or solicitor.
If the person is no longer capable of managing their affairs, someone of appropriate standing will need to make an application to the Court of Protection.
The Court of Protection website contains the necessary forms and guidance on their submission. It also sets out the fees which you need to pay and the options for reclaiming those fees from the person you are acting as deputy for.
However it can be a complicated process; detailed forms need to be submitted and the appointment of the deputy approved. We can assist you through it all or just part of the process.
Both LPA’s and deputyships are legal methods by which decisions can be made for persons lacking mental capacity. The key difference between the two is that:
An individual therefore has more control over the LPA process and choice of attorney and the LPA can therefore reflect the person’s own wishes before they lose capacity.
A Deputy can be appointed by the court to act as:
Anyone over the age of 18 can be a Deputy. A prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the court when applying to become Deputy. These could lead to the application being refused.
Often a spouse, partner or close relative will apply to be the Deputy. In cases where there is no-one able or willing to take the role then the local authority can do so (in low value estates) or a professional Deputy e.g. a solicitor can be appointed. Where the person lacking capacity has a large estate then a professional Deputy may be more appropriate. The Directors of Whitehead Monckton are happy to act in this capacity.
A Deputy’s powers derive from the deputyship order made by the Court of Protection. The appointed Deputy cannot exceed those powers. The granted powers may be wide, or it could set limits, for example providing that large items of expenditure cannot take place without further permission of the court.
The Deputy’s duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
The Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the court and filing annual reports and accounts.
Deputyship orders are supervised by the Office of the Public Guardian and may have different levels of supervision.
For example, new orders are likely to have close supervision for the first year or two, and then a “light touch” approach once patterns are established. The Deputy’s reporting obligations will depend on the level of supervision.
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 end by order of the Court or Protection or on application by the Deputy, if he wishes to retire or resign, enabling a new Deputy to be appointed.
As a deputy appointed by the Court of Protection, you are required to submit an annual account/report to the Office of the Public Guardian (OPG). One of the duties of the OPG is to supervise deputies and the report allows the OPG to monitor your actions, ensuring you are working in your loved one’s best interests.
The report outlines the decisions you have made on behalf of the individual and provides details of the financial transactions made on their behalf throughout the year. For bank accounts, you are expected to account for all money in and out and balance them to the penny.
In cases where the reports are completed incorrectly or insufficient detail is provided, the OPG may require further information before accepting the submitted accounts. It is within the power of the OPG to ask an attorney to explain their actions and if they are not satisfied that decisions have been made in the best interests of the donor, they can refer the matter to the Court of Protection. This can often cause significant stress and concern for lay deputies.
Acting as professional deputies, we regularly prepare these reports and it is not an overestimation to say we have prepared hundreds of annual reports over the years. We also work alongside a number of lay deputies who prefer to have their annual report prepared for them to ensure everything is recorded and explained correctly to avoid the report being rejected by the OPG and the possible consequences. We can guide you through the process of preparing these reports accurately and in compliance with the Court’s guidelines.
We can assist you with completing your annual report either as a one-off instruction or on an annual basis. Usually, we can agree a fixed fee for the preparation of the report. All you need to do is keep a record of all financial statements and receipts and let us know about any decisions you have made over the year.
Members of the Tax and Estate Planning team at Whitehead Monckton regularly act as Deputies and we have substantial expertise in this area of law within our team.
We can help with:
