What is a deputy?

Caring for a sick loved oneFind out how to become a deputy when a loved one lacks mental capacity, along with the fees and duties involved.

If you have had a fall and suffered a serious brain injury, or if you are suffering from neurodegenerative disease and it is getting worse, you need urgent medical intervention – yet your spouse, children and relatives cannot help you make decisions or to make decisions on your behalf, unless you had specifically appointed them as your lasting power of attorney when you were still alert and had mental capacity.

In such an unfortunate situation, your loved ones must, instead, apply to the Court by Protection to become your deputy. The application process is long, expensive and complicated. And once your deputy is appointed by the Court of Protection, they still have on-going legal requirements to meet. This is why our elderly care solicitors at Romain Coleman encourage our clients to be in control by planning ahead.

In this article, we aim to discuss deputyship and highlight its disadvantages in comparison to a lasting power of attorney.

The roles of Court of Protection

Based in London, the Court of Protection was set-up to review cases where people cannot make decisions because they lack mental capacity. The court is responsible for:

  • Deciding whether someone has the mental capacity to make a particular decision for themselves.
  • Appointing deputies to make on-going decisions for people who lack mental capacity.
  • Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity.
  • Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay.
  • Making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
  • Considering applications to make statutory wills or gifts.
  • Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

When a deputy is needed

Contrary to popular belief, your next of kin does not automatically have the power to make decisions pertaining to your property and financial affairs, as well as your personal welfare, unless you have appointed them as your attorney through the legal documents of lasting power of attorney.

In other words, if you haven’t appointed anyone as your attorney and if you’ve had a sudden brain injury or a progressive illness that affects your decision-making process, no one can access your bank accounts, pay bills, and decide how you should be looked after – unless they apply to the Court of Protection to become your deputy.

Your next of kin, a trusted friend, or even a solicitor can become your deputy. They can be:

  • A property and financial affairs deputy, managing your bills and selling your property to pay for your care.
  • A personal welfare deputy making important decisions about your medical treatment and your short-term and/or long-term care.

The process to become a deputy is long, expensive and complicated, which we will highlight below.

Duties of a deputy

If you intend to become a deputy for a person who lacks mental capacity, you must be aware of the responsibilities involved.

For instance, you must act in the person’s best interests and act with due care and skill – as set out by the Court of Protection. The decision making part is tricky as you must consider the level of mental capacity (of the person you’re a deputy for) every time you make a decision for them. For instance, the person may be able to make a certain decision at one time but not others. Accordingly, you must support the person to make decisions for themselves. You cannot assume that the mental capacity is the same at all times and for all kinds of things, according to the Court of Protection.

Also, to act as a deputy for property and financial affairs, you must have the skills and ability to make the right financial decisions for the person you are acting for.

Every deputyship order is different too – the court may limit the power of each deputy like a deputy can only spend a certain amount on care in a certain period.

Applying to become a deputy

Applying to become a deputy through the Court of Protection can only happen once your loved one loses mental capacity and the process usually takes more than 3 months.

There are also several forms involved, including:

  • The main application form
  • Assessment of capacity
  • Supporting information for property and affairs if it is relevant
  • Supporting information for personal welfare if it is relevant
  • Deputy’s declaration

Because the process is long, there are situations where you need to make an emergency application. For instance, if the person needs urgent medical treatment.

There are also several fees involved:

  • £365 for each type of deputy.
  • £485 if the court decides your case needs a hearing.
  • £100 assessment fee for each new deputy.

Subsequently, after a deputy is appointed by the court, there is an annual supervision fee depending on the level of supervision your deputyship needs. In general:

  • £320 for general supervision.
  • £35 for minimal supervision – this applies to some property and affairs deputies managing a budget which is less than £21,000.

For a property and affairs deputy, you must also arrange a security bond with an insurer. The amount depends on the value of the estate and how much of the estate you (the deputy) control. The purpose of this bond is to ensure that you don’t misappropriate the fund of the person you’re a deputy for. To pay for the bond, you may use your own money and be reimbursed when you have access to the bank account of the person you are a deputy for. Alternatively, you can also pay the bond from any money you hold for the person.

On-going legal requirements

After becoming a deputy, you may be visited by a Court of Protection officer to check if you understand your duties and are carrying them out properly.

Also, you must write a report and submit it to the Office of the Public Guardian annually. In the report, you must highlight:

  • The reasons for your decisions and why they were in the best interests of the person you’re a deputy for.
  • Whom you spoke to and why what they said was in the person’s best interests.
  • The finances of the person if you’re their property and financial deputy.

Avoid deputyship by appointing lasting power of attorneys in advance

At Romain Coleman, we have witnessed many heart-breaking scenes when a person losses his/her mental capacity due to an accident or a neurodegenerative disease like dementia. In this trying time, the next of kin still have to go through the complicated deputyship application before they can be in charge and make the appropriate decisions.

Our advice is to spare your loved ones from the deputyship process by appointing your lasting power of attorney today. Your attorney does not need to be in a legal profession – they can be your spouse, your adult children, your family members or even your trusted friends.

The benefits of lasting power of attorney are obvious when compared to deputyship; the key ones include:

  • The registration process for a lasting power of attorney takes between 8 to 10 weeks if there are no mistakes in the application. On the other hand, the application process of deputyship often takes more than 3 months, longer if there is a hearing involved.
  • It only costs £82 for each type of lasting power of attorney, whereas it costs £365 for each type of deputyship. There are also other costs involved in deputyship.
  • Your property and affairs attorney doesn’t need to pay a security bond, whereas your property and affairs deputy must pay a security bond.
  • Following the death of the person you’re a deputy for, the security bond will remain in force for 2 years unless there is a court order to cancel it.

Romain Coleman can assist you

Established in 1964, the elderly care solicitors at Romain Coleman have been helping families in London to have peace of mind by sorting out their legal affairs in advance. Families with a loved one who has dementia know our dedicated work best, as we save them time and money by getting the legal work right the first time.

Our knowledge and expertise are evident in the posts we share with you, such as:

If you would like to protect yourself with a lasting power of attorney or more information about applying to act as a deputy for a loved one, please contact our experienced team of solicitors on 0208 520 4555 or complete our online form.

This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

Archives