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Deputyship and the Court of Protection

Case Study

Tom is a widower. He was diagnosed with dementia four years ago.

He, like one third of people with dementia, lives on his own. He owns his own house and has a few ISAs and savings accounts. Tom did not put a Power of Attorney in place and has not made a Will.

Tom doesn't have any close relatives living nearby. His only daughter, Mary, lives in London. She visits as often as she can, but as Tom's illness has progressed she has seen him less often.

Recently Tom's condition has deteriorated rapidly. Three months ago he was admitted to hospital after a bad fall in which he broke his hip. It became clear during the course of his treatment that he cannot go back to living at home.

Tom's fall also seems to have worsened the symptoms of his dementia, and he is struggling to understand and respond appropriately to questions.

Tom is now ready to be discharged. The hospital has contacted Mary and has asked her where she wants Tom discharged to. Mary finds a place for Tom in a Nursing Home.

The question of funding Tom's care then comes up and Mary is asked to start signing documents and answer questions about Tom's finances……

These circumstances are not unusual. One study found that over 45% of permanent admissions to care homes start with a hospital admission. This figure rises to 56% of permanent admissions to nursing homes.

The need for long term support is often recognised at a point of crisis. At those points questions seem to come 'thick and fast', and often carry long term financial and personal consequences.

If you do lose capacity and require long term care, sadly the first questions are usually "where should you be cared for?" and "who will pay?".

Last month we looked at plans you can make for this situation. Today we look at what your nearest and dearest will have to do if you lose the ability to make decisions and you have not prepared.

If you have not put a Lasting Power of Attorney in place nobody has legal authority to make decisions for you without obtaining the permission of Court of Protection. This might come as a surprise to your spouse, parents or children, who may find that their status is questioned, and it is not assumed that they know what is best for you.

The Court of Protection can rule on specific issues or, if somebody suitable applies, can issue a general authority appointing one or more people to act as your 'Deputy'.

The two forms of general authority are 'Property & Financial Affairs' (to deal with financial issues) and 'Health & Welfare' (to deal with medical and personal issues).

The first thing your family or friends will need to decide is who will apply to be made Deputy. The Court has issued guidance on this and suggests the following:

Preferred Order of Appointment
Spouse or Partner
Relative with personal interest
Close Friend
Professional Adviser
Local Authority
"Panel Deputy"

As you can see, the Court prefers the role to be taken by people who are most likely to understand what you would want.

This is only a starting point, however. The Court will always seek the appointment that is in the person's best interests.

In our case study, Mary could seek a 'Deputyship Order', giving her the legal standing to answer the questions about where Tom should live and how his care will be paid for.

Choosing a care home for Tom is a question that you might think requires the authority of a 'Health & Welfare' Deputyship Order. However, the reality is that unless there is a dispute about living arrangements, or if Mary planned to care for Tom herself, she would only need to seek a 'Property & Financial Affairs' Order. In fact the Court of Protection tends only to make 'Health & Welfare' Orders in more complex or difficult cases.

Mary will need the 'Property & Financial Affairs' Order so that she can draw money from Tom's accounts and deal with his house.

So how does Mary apply to be appointed as Tom's Deputy?

As you would expect there are numerous forms to complete, but this is the high-level process:

Deputy

The Cost & Timescales

  • The application must be supported by a Doctor's report. Most GPs charge £50.00-£75.00 to prepare this report.
  • The application to the Court will carry a fee of £400.00.
  • It will usually take a few months for an Order to be issued.
  • Before the Order is issued, Mary will need to take out an insurance bond to protect Tom's assets should she act inappropriately. That will probably cost around £300.00
  • Mary could make the application herself (https://www.gov.uk/apply-to-the-court-of-protection), but if she uses a solicitor to assist her their costs are likely to be in the region of £1,000.00.

All these bills can be met from Tom's funds, but the cost and timescales involved are greater than if Tom had completed a Lasting Power of Attorney.

The other key difference from a Lasting Power of Attorney is that the Court may impose conditions or limitations on Mary. For example, they might state that she must report back once she has a full picture of Tom's assets, or it might say she needs the Court's permission to sell his house.

There are some specific actions that cannot be taken by Mary even once she has the Deputyship Order:

  • She cannot prepare a Will for Tom if he has not made one himself. Even if Tom had made a Will the Deputy is not entitled to view or alter it.
  • She cannot give away any substantial part of Tom's wealth.
  • She cannot transfer any of Tom's property into her own name.
  • If she wanted to do any of these things she would need to go back to the Court for permission.

Becoming Tom's Deputy also carries ongoing responsibilities:

  • Mary must always act in Tom's best interests.
  • She must not make a decision that Tom can still make himself.
  • Mary must maintain a high standard of care in managing Tom's affairs.
  • She must make sure that all Tom's income is collected and his bills settled.
  • Mary should also consider opening a 'deputyship' bank account, and keep records so that she can report back to the Court if required to do so.

In Tom's case these responsibilities could extend to ensuring that he has claimed any relevant benefits and that appropriate assessments of Tom's care needs are performed.

Next month we will begin to consider the types of assistance someone needing long term care might expect from the state, and the assessments that decide entitlement.