The courts are often called upon to sanction treatment for patients whose ability to make decisions for themselves is impaired. In a recent case on point , the Court of Protection had to decide whether it was in the best interests of a man with mental...
If someone becomes unable to manage their own affairs, an application can be made to the Court of Protection to appoint a deputy to act on their behalf. This will allow decisions to be made about their property and finances or personal welfare.
If a deputy is not appointed, matters can become very difficult for the person involved, as bills might not be paid, bank accounts cannot be accessed and no-one will be able to deal with their assets, including their property, if they move into care. It can also mean important decisions about their medical treatment and day-to-day care cannot be made when they need to be.
At Tanners Solicitors we understand how difficult it is to see a loved one unable to cope. We can help you make the necessary application to the Court of Protection to become a deputy and ensure that you have all of the supporting documentation that will be needed.
Our team are friendly and sympathetic and we will do all we can to ensure the application goes through without avoidable delay. We have extensive experience in dealing with deputyships and the associated issues that can arise. We can give you the advice and guidance you need to take on the role and help your loved one with their affairs.
To speak to one of our Court of Protection deputyship experts in Cirencester, Cheltenham or London, please feel free to contact us in one of the following ways:
- Telephone - 01285 659061
- Complete our contact form
How we help with Court of Protection Deputyship and other applications
Applying to become a Court of Protection Deputy
Anyone aged 18 or over can apply to become a deputy. Generally, it is a close relative or friend of the person in question.
Each type of deputyship requires certain information as set out below. Should you wish to act as a deputy for both property and financial affairs and personal welfare, two separate applications will be required.
When applying to become a deputy for property and financial affairs, as well as an application form, you will also need to send the court detailed information about the assets and income of the person on whose behalf you wish to become a deputy.
Should you wish to act as a personal welfare attorney, you will need to provide detailed information about their personal welfare.
When applying to become a deputy of either type, an assessment of the capacity needs of the person you wish to act for will need to be carried out by a qualified medical professional. In addition, as the applicant, you will need to make a declaration about your own circumstances and your ability to carry out the duties that deputyship entails.
In some cases, you may also have to obtain permission from the court to make the application and provide further evidence relating to capacity.
Advice for Court of Protection deputies
Becoming a deputy can be daunting as you will need to keep careful records of what you do on behalf of the person involved as well as dealing with their affairs for them.
You will be required to pay a security bond if you will be dealing with an incapacitated person’s finances, to ensure that the person’s estate is protected.
Keeping the finances of the person you are supporting separate from your own is important, as well as ensuring you keep details of any expenses and income. There is annual supervision of deputies and the extent of this will depend on the complexity of the estate that you are managing.
All of the decisions you make must be in the best interests of the person for whom you are acting. The deputyship order that you are sent will set out the decisions that you can make which could include paying for care, buying or selling property, making investments and providing for dependants.
Court of Protection applications to sell property
The deputyship order may state that you cannot sell a property without the authority of the court, in which case you will need to apply again to the Court of Protection for consent, including a statement explaining why this is in the best interests of the person you are acting for.
This may mean explaining how much care fees are and how much is available elsewhere in funding as well as a plan for the proceeds of sale, to include paying debts and making investments.
Statutory Wills
If the person you are looking after does not have a Will and needs one, or needs changes made to their existing Will, then you can make an application to the Court of Protection for a statutory Will to be made on their behalf.
The application is not straightforward and it is generally advisable to seek legal help from experienced Court of Protection solicitors before applying.
Court of Protection deputy disputes
It is often an emotional time when a relative becomes unable to manage their affairs and disputes can arise over what is in their best interests.
A deputyship application may be disputed or the conduct of a deputy challenged.
We always recommend early intervention by legal experts to try to resolve issues before they escalate. Our Court of Protection lawyers are experienced at finding an acceptable solution to difficulties before positions become entrenched.
What is the role of the Court of Protection?
The Court of Protection is responsible for giving people the authority to make decisions on someone else’s behalf as well as for deciding whether someone has lost the capacity to manage their own affairs.
The Court also oversees the actions of a deputy and has the power to remove a deputy.
It can also make decisions about someone’s healthcare or personal care if they do not have anyone to make these decisions for them.
It has a responsibility to act in the best interests of the individuals it is dealing with at all times.
How long does it take to become a Court of Protection deputy?
The time taken for an application to be processed can vary but is often between six and eleven months. This depends on issues such as whether permission is required to make the application, how long it takes to notify interested parties of the application and whether anyone objects to a deputy being appointed.
The court may also require more information before making a decision.
Who can act as a Court of Protection deputy?
Anyone aged 18 or over can be appointed as a deputy, however it can be an onerous task and not everyone will be willing or able to take on the role. It is important to fully consider whether you can devote the necessary time and attention to deputyship before you make the application.
If an individual does not have anyone suitable to step in on their behalf, then a professional deputy can be appointed. This is generally a solicitor with expertise in Court of Protection issues and complex financial matters.
How can you sell the house of someone who lacks capacity?
If the deputyship order states that there is a restriction preventing the deputy from selling a property then an additional application will need to be made asking the Court of Protection for permission. You will need to set out your reasons for selling and explain why it is the owner’s best interests, for example, if they will not be able to return there to live and they need funds to pay for care home fees.
Written valuations from estate agents should also be included with the application as well as details of what you will do with the money following the sale.
Can you make a Will for someone who is not ‘of sound mind’?
A statutory Will can be authorised by the Court of Protection. This is a Will drawn up for someone who no longer has the mental capacity to make a Will themselves.
It will be authorised by the Court of Protection and signed by the deputy. The Court will require a substantial amount of information with the application, including details of the individual’s financial affairs, family members, a copy of any existing Will and medical evidence supporting their incapacity.
Can you have a Court of Protection deputy removed?
If you believe that a deputy is not acting in the best interests of the person for whom they have been appointed or that they are behaving improperly, you can make a complaint to the Office of the Public Guardian or, if you are a relative, to the Court of Protection.
Problems may arise from the deputy simply being overwhelmed with the task of managing someone’s affairs, although in some cases there could be issues of dishonesty.
The Court of Protection has the power to remove a deputy if they find that they have been acting outside their authority or if they have mismanaged or misappropriated their property.
Speak with our Court of Protection deputyship solicitors
At Tanners Solicitors we have in-depth experience of dealing with deputyship orders and assisting deputies in their role. We can advise and support you through an application and when acting as a deputy to ensure your loved one’s affairs are well-managed and properly recorded and reported.
To speak to one of our Court of Protection deputyship experts in Cirencester, Cheltenham or London, contact us in one of the following ways:
- Telephone - 01285 659061
- Complete our contact form