Unfortunately, many families are left caring for a loved one who lacks capacity to look after their own affairs. In the absence of a Lasting Power of Attorney or an Enduring Power of Attorney, if you were to lose capacity, there is a different process to follow by which you can apply to the Court of Protection to be made a Deputy.
When someone ‘lacks mental capacity’ this means they can no longer make decisions for themselves at the time it needs to be made.
There are two types of Deputyship Orders:
- Property and Affairs – A Deputy can make decisions regarding another person’s property and finances, this can include accessing their bank or building society accounts, managing their finances or selling their property
- Personal Welfare – A Deputy is appointed to make decisions regarding another person’s personal welfare, this can include their diet, dress, the medical treatment they receive or where they live
Who can be a Deputy?
A deputy is a person or occasionally a Trust Corporation, who has been appointed by an Order granted by the Court of Protection, to make decisions on behalf of a person that does not have the mental capacity to make decisions themselves.
The deputy can be a professional or an individual. In many cases, family members will apply to become a deputy for a loved one who no longer has capacity. The Court of Protection will consider the suitability of the applicant before making its decision whether to grant a deputyship order.
You can apply to be a deputy if you are aged 18 and over.
Responsibilities of a Deputy:
In all circumstances, deputies are required to act in the best interest of the person who lacks capacity.
The court order will detail what the deputy can and cannot do, however, the Mental Capacity Act 2005 Code of Practice provides general guidance and rules.
When making decisions the deputies are guided to consider what the person has done in the past. A deputy must apply a high standard of care which may include getting advice from professionals. The Deputy must do everything they can to help the person who lacks capacity to understand the decisions being made, for example ensuring that they explain what’s going to happen. A deputy cannot assume the person’s capacity is the same at all times as they may have fluctuating levels of capacity.
As a deputy you will be supervised by the Office of the Public Guardian (OPG). The Court will order that the deputy makes regular reports to the OPG. The deputy must keep a clear record of any decisions made, keeping copies of any documents about the decisions they have made including receipts, bank statement, reports and letters.
The court can set different levels of supervision, depending on the complexity of the matter and the value of the estate.
How can MLP help me?
If you require assistance with matters of capacity, our Court of Protection solicitors are able to provide clear and straightforward advice on deputyship applications and the ongoing management of a person’s welfare and assets.
Contact Details for Wills, Trusts and Probate Team: 0161 9269969 or WTP@mlplaw.co.uk
Welcome to the MLP Knowledge Hub.
This is where you’ll find the latest MLP News, our Brexit update and all of our latest blogs, competitions and events!View All