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Contact usCourt of Protection and the Role of Deputy
When a family member or loved one becomes unable to make decisions on their own, the Court of Protection steps in to oversee their affairs, appointing ‘deputies’ to make day to day decisions. Our team of Court of Protection solicitors advise families and individuals on all aspects of the Court of Protection process and how to carry out the role of deputy. In many cases we take on the role of deputy ourselves.
Our focus is you
We all want to make our own decisions. But sometimes old age, illness or personal injury makes this impossible. Many people are surprised when we advise them that a spouse, partner or family member can’t automatically take decisions about financial and health affairs of someone who has lost the ability to take those decisions. In the absence of an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) you must apply for authority to manage someone’s affairs to the Court of Protection. At a distressing time our specialist team can provide reassuring, personal advice to ensure your interactions with the Court run as efficiently and as smoothly as possible.
Your key questions answered
The Court of Protection is a specialist court staffed by a range of Circuit, District and High Court judges. It is tasked with making decisions on behalf of individuals who do not have the ability to take decisions themselves. However it does not always make the decisions. Sometimes it appoints appropriate people, known as deputies, to do so. At DMH Stallard we represent deputies and also act as deputies ourselves. Key responsibilities of the judges at the Court of Protection include:
- Decide on whether an individual can actually make a particular decision for themselves
- Make decisions on finances and welfare that affect an individual who lacks capacity
- Appoint deputies to make day to day decisions for individuals lacking capacity
- Make decisions on the sale of a property for individuals lacking capacity
- Decide on the validity of LPAs and EPAs
- Remove attorneys appointed under LPAs or deputies who are not fulfilling their obligations
- Hear and decide cases where there are objections to registration of an LPA or an EPA
- Make decisions about statutory wills
In our experience, the time it takes from applying to be appointed as a deputy to the order being finalised by the Court of Protection takes between six and nine months. When the application is submitted certain people must be notified and be given time to respond to the application. If there are objections this can slow down the process. Once any objection has been dealt with, a judge will consider the application and decide whether to appoint a deputy or not. Factors the judge will take into consideration in deciding if an appointment is appropriate include whether the individual who lacks capacity has property that may need to be sold and whether there is a level of income that justifies the appointment of a deputy.
Normally the appointment of a deputy is an order that lasts as long as the individual who is unable to make decisions remains incapacitated. In many instances this is effectively for the remainder of the individual’s lifetime. Regular reviews of capacity of the individual should be carried out to ensure that deputyship remains appropriate. In addition, there may be occasions where a deputy is removed, and a new appointment order is required. These occasions will occur if the deputy does not fulfil their obligations and the Court deems removal appropriate. The deputy may also need to be removed if they become ill or incapacitated or no longer wish to act. A Professional Deputy may retire.
A deputy is appointed by the Court of Protection to make decisions for someone who has lost the mental capacity to take decisions for themselves. They should be over 18 and will normally be a relative or close friend. Because of the responsibility and the legal issues that can arise when managing someone else’s finances, it’s not unusual to appoint a professional like a solicitor to act as a deputy. It is something that our specialist solicitors at DMH Stallard can offer.
Property and finance deputies (the most common type of deputy) can manage a person’s financial affairs, for example, dealing with living expenses, running bank accounts, or buying and selling property. Personal welfare deputies are appointed in very limited circumstances to make healthcare and welfare decisions. However in most cases decisions about medical treatment and care are taken in consultation with healthcare providers and the individual’s family.
LPAs are made when the individual has the capacity to appoint his or her Attorney. As we’ve seen, the Court of Protection process is appropriate when someone has lost mental capacity to take decisions and does not have an LPA.
Usually you need to have the required mental capacity to make a valid will. The law recognises however that there are circumstances in which it is necessary or desirable that a will is put in place despite lack of mental capacity. For example all the beneficiaries in an existing will have died or the individual has high value assets and there are significant taxation implications if his or her existing will remains in place. In such cases it is possible to apply to the Court of Protection for an order that gives someone else the legal authority to execute a will on the incapacitated person’s behalf. This is called a Statutory Will. The process is complicated and DMH Stallard is instructed regularly in cases involving statutory wills. A great deal of information needs to be assembled and produced to the court. There may also need to be a hearing if for example potential beneficiaries or family members object to a new will.
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