Advising on the role of a deputy, which deputyship to consider and how best to manage any subsequent applications.
When a person lacks capacity to make decisions in relation to their affairs and they have not nominated a power of attorney, an application will need to be made to the Court of Protection to request that a Deputy be appointed.
The Deputy can then step into the shoes of the person who lacks capacity and make decisions on their behalf. Deputyship is usually given to a family member or close friend but can also be given to a professional such as a Solicitor, if appropriate.
Deputies can be appointed to make decisions in relation to an individual's property and financial affairs and/or their health and welfare.
Once appointed by the Court of Protection, Financial Deputies have to report annually to the Office of the Public Guardian and demonstrate that they are acting in the best interests of the person for whom they are making decisions.
Health and Welfare Deputyships are awarded far less frequently than Property and Financial Affairs Deputyships but are increasingly being used to help families who feel side-lined and left without a voice.
Despite the law relating to adults who lack mental capacity - the Mental Capacity Act 2005, setting out that a person’s parents, friends and family members should be consulted in relation to their loved one’s welfare decisions, this does not always happen.
Families may experience practical difficulties in working alongside health and social care providers to make decisions for their relatives, in which case a Welfare Deputyship is an extremely useful appointment, giving authority to the Deputy to make those decisions in the best interests of the individual. Welfare Deputyships, can, in particular, help parents to remain as the decision maker for their child after their eighteenth birthday.
For more information about the role of a Deputy and making decisions for someone who lacks capacity, please view the Government’s guide.
We can also support you with applications to the Court of Protection that concern an individual's property and financial affairs, but do not require an application for deputyship.
Applications of this type may concern the execution of your duties as an Attorney, for example, needing to gain the Court's permission to make gifts to family or friends of the donor or seeking permission to sell all or part of the Donor's property to a family member or close friend.
Alternatively, applications could relate to property ownership, i.e., needing to seek the Court’s permission to execute documents for Equity Release transactions for incapacitated parties or requiring an application to replace a Trustee of a property.
We will be able to advise you of the practical aspects to these applications, but also explain what the Court will be looking for within the application and your likelihood of a successful outcome.
The Ministry of Justice has recently published a toolkit for parents and carers of children who do not have mental capacity to make decisions in respect of their finances. The toolkit explains the parent / care giver’s rights and what they need to do in accordance with the Mental Capacity Act in order to manage the child’s finances. Click here to access the toolkit.
We can advise which Deputyship may be most applicable to your circumstances and support you in any subsequent applications to the Court of Protection. We recognise that this can be a stressful and difficult time and we strive to make this process as straightforward as possible and can use our expertise to guide you through the Court processes.
We can also provide support with the administration of the Deputyship after the Order is granted and give specific advice on decision making as a Deputy or regarding financial and succession planning.
For more information or advice on Court of Protection or any other vulnerable person issues, please get in touch with any of our expert team directly or via the contact button below. You can also call us on freephone 0800 0931336 or by email firstname.lastname@example.org for a no obligation chat and to see how we can help.