Court of Protection and Deputyship

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We are frequently asked whether there is anything that can be done to allow someone to deal with the affairs of a person who has become mentally incapable of managing those matters on their own, but that person has not prepared an Enduring Power of Attorney or a Lasting Power of Attorney.

This often comes to light as a problem when family members try to use the person’s accounts to settle bills etc and are informed by the bank they do not have authority to do so. Fortunately, there is a solution to the problem.

What is the Court of Protection?

The Court of Protection is a part of the Court system in England and Wales with responsibility for matters involving vulnerable adults. They are able to appoint people (often family members) to manage the affairs of those individuals who lack the mental capacity to make decisions about their own affairs but have not appointed Attorneys. This can be in relation to their finances and property and in some cases, their health and welfare. The people appointed by the Court are called Deputies.

Who can become a Deputy?

One or more people can apply to the Court of Protection to become a Deputy(s). These are usually the family or friends of the person who lacks mental capacity, but can be professional Deputy(s) if no-one is able or willing to act. They must be at least 18 years of age and have the appropriate skills to take on what can sometimes be an onerous role.

How does the Court decide that a person lacks capacity?

There are many reasons that someone may be considered to lack the capacity required to manage their own affairs, for example:

They have suffered a medical trauma (e.g. a stroke); or
Have an underlying illness or injury which affects their cognitive abilities; or
They have dementia; or
They have severe learning difficulties or disabilities.

As part of the application, medical evidence needs to be submitted to the Court to confirm that the person can no longer reliably make decisions for themself. This evidence is sometimes provided by the person’s doctor or consultant but if that isn’t possible, then an independent capacity assessor can be instructed to prepare the necessary document to support the application to the Court.

Types of Deputyships

There are two types of Deputyship orders which the Court can make:

Property and Financial Affairs order: allowing the Deputy(s) to deal with monetary matters for example, paying bills, selling property, making gifts and maintaining financial stability. This type of application represents the vast majority of submissions to the Court.

Personal Health and Welfare order: allowing the Deputy(s) to make decisions about health and welfare matters for example the types of medical treatment the person undergoes, the type of care that the person receives and where they will receive it (for example, will that care be provided in a care home or in the persons own home). Health and Welfare applications to the Court are relatively rare and very few of these types of orders are issued.

How do you apply to be appointed as a Deputy?

The application forms the Court require to be completed are lengthy and are designed to collect as much information as possible about the person who lacks capacity. This includes where they live, what monies they have, what other assets they own or may be entitled to as well as their income and expenditure.
The medical evidence mentioned above will be submitted for consideration so the Court can be certain the appointment of a Deputy is absolutely necessary. The Court will consider the information provided and will ensure that certain interested parties, including the person lacking capacity, are informed of the application
When they have made a decision, the Court require the Deputy(s) to provide a Bond (a kind of insurance policy) before finally issuing the order.
It is not unusual for the process to take between 6 to 12 months.

How we can help?

If you wish for more information about applying for a deputyship or the role that you have, please contact a member of the Private Client Department on 0808 166 8860 where a member of the team will be pleased to help you.