Planning for the future can be overwhelming as nobody knows what is around the corner. One way we can protect ourselves and our loved ones is by having Property & Finances and Health & Welfare Lasting Powers of Attorney in place. However, we appreciate it can be upsetting to consider what may happen one day and so not everyone is prepared in this way. If someone you know is no longer able to manage their affairs themselves and they do not have a Lasting Power of Attorney, you will need to apply to the Court of Protection for a Deputy Order.
In most situations, the Court of Protection will not appoint a Health & Welfare Deputy as most care and treatment decisions can be made in accordance with the provisions contained in the Mental Capacity Act 2005. However, if you believe a specific Health & Welfare Deputy Order is required, our experienced Court of Protection Solicitors are happy to support you with your application.
The majority of Deputy Orders we apply for relate to the management of an individual’s property and finances. This will no doubt be an emotional and distressing time as you will be coming to terms with caring for the individual while attempting to manage important areas of their life. We are available to support you in various ways should you be in this situation, including:
Our Wills, Probate & Estate Planning department answer a variety of the questions below which we are regularly asked in relation to Court of Protection applications. Should you have any additional questions or you would like to discuss your situation with our Court of Protection team, please contact us.
The Court of Protection is the legal body responsible for making decisions on behalf of individuals who lack the mental capacity to make their own choices.
If you wish to manage the affairs of a loved one or friend who has lost the ability to oversee their own affairs due to an injury or illness, such as a stroke or dementia, and they do not have an appropriate Lasting Power of Attorney, you will need to apply to the Court of Protection to become their Deputy.
A Deputy Order is a legal document issued by the Court of Protection which appoints a person to act on behalf of an individual regarding their property and financial affairs or a specific personal welfare issue.
Having a Lasting Power of Attorney in place is the best way to prepare for the future and have plans in place should you lose mental capacity. By preparing the Property & Finances and Health & Welfare Lasting Powers of Attorney, you are able to choose who will act as your Attorneys. This gives you the opportunity to choose people you trust who you feel will make the right decisions on your behalf, while understanding their responsibilities in this important role. You can discuss your wishes with them in advance and be confident that they will follow them whenever they can.
In contrast, if no Lasting Power of Attorney is in place and a Deputy Order is required, the Court of Protection decides who should be appointed as your Deputy to oversee your affairs. This may not be the person you would have chosen, and the application process takes many months which can lead to additional hardship, delays and costs for your loved ones at an already worrying time.
A Property & Financial Affairs Deputy Order enables the Deputy to:
A Property & Financial Affairs Deputy may also handle legal affairs on behalf of the individual, including:
A Property & Financial Affairs Deputy can work with agencies that provide support, educational and/or vocational services to the individual.
When a Property & Financial Affairs Deputy Order has been made by the Court of Protection, the Office of the Public Guardian steps in to supervise the Deputy. Deputies are required to:
The Office of the Public Guardian will ensure that the Deputy carries out their duties responsibly and in the best interests of the individual they represent. The level of supervision will be determined by various factors, including the Deputy’s relationship with the individual, the intricacies involved with managing their affairs and any previous experience the Deputy may have had in the role.
The Office of the Public Guardian will periodically review the Deputyship to ensure that the Deputy continues to act in the best interests of the individual. If the person regains capacity or if there are concerns about the Deputy’s conduct, the Court may terminate the Deputyship.
Any individual over the age of 18 with the appropriate skills and experience can apply to become a Deputy. This could be a family member, close friend, or a professional such as a Solicitor. The Court carefully considers each application to ensure the appointed Deputy is capable and trustworthy.
In certain situations it may be possible for two Deputies to be appointed and we can discuss this with you if you feel it appropriate.
Applying for a Deputy Order can be a complex legal process with extensive forms and supporting documents required by the Court of Protection, including an Assessment of Capacity form that the individual’s doctor or social worker will complete.
It can take up to twelve months for a Property and Financial Affairs Deputy Order to be made by the Court. In certain situations an Interim Order can be applied for at the same time as the main Order to enable (for example) the Deputy to pay nursing home fees while the Court considers the main application.
We can support you to ensure that everything is completed accurately, thereby reducing the possibility of any directions being issued by the Court which will cause delays.
While it is possible to apply for a Deputy Order independently, the process can be complicated and time-consuming and any incorrect or incomplete documentation will lead to a delay in the Court dealing with your application. Our expert Court of Protection team are here to support you in your application, offering guidance with compassion and pragmatic advice.
The Court of Protection charges £371 to consider the application and legal fees will also be incurred. Your legal team will have regard to the Fixed Costs Practice Direction and will discuss this with you if you instruct us.
The Court usually asks a Property & Financial Affairs Deputy to obtain a security bond before it issues the Deputy Order. A security bond is a type of insurance designed to protect the individual’s finances and the annual premium will be calculated by reference to the value of the individual’s assets and how much of their estate is in the Deputy’s control.
When you are appointed the individual’s Deputy, you will need to pay a one-off Deputy Assessment fee which is currently £100. A general supervision fee, currently £320, will be payable to the Office of the Public Guardian annually.
A full or partial exemption may apply to some of the fees but certain conditions need to be met and we will be able to advise you about this. The exemption does not apply to legal fees.
A Deputyship can be terminated or revoked by the Court of Protection under certain circumstances, for example, if the Deputy is found to be acting improperly or if the individual regains capacity.
A Statutory Will is a Will created on behalf of an individual who lacks the mental capacity to make or amend their own Will. An application has to be made to the Court of Protection who will aim to create a Will that reflects the individual’s likely wishes, values, and beliefs based on any available evidence, past statements, and the recommendations of experts. The Court usually involves family members and potential beneficiaries during the decision-making process and allows them to submit evidence and opinions to assist the Court in making a fair and informed decision. Should you be managing the affairs of a loved one and believe that a Statutory Will is required, we can discuss the options with you.
Applying for a Deputyship Order and navigating the associated responsibilities can be an intricate and time-consuming process. While we always recommend that Lasting Powers of Attorney are prepared, we understand that this is not always possible. Our skilled Wills, Probate and Estate Planning team can work with you and those around you to make the necessary applications to the Court of Protection, offering you practical advice to best support your loved one.
Get in touch with one of our Wills, Probate and Estate Planning Solicitors from our offices in Andover, Romsey, Salisbury or Witney by using the Contact Form, emailing moc.n1709424677ellur1709424677ekrap1709424677@ofni1709424677 or calling your local office: