When a person lacks the capacity to deal with their property and financial affairs and/or their health and welfare and they have not made an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA), the Court of Protection may appoint a Deputy to act for them. The difference between a Deputyship Order and a LPA or EPA is that the person who lacks capacity will not be able to choose who is appointed or set the limit of authority to be given.
There are three different types of deputies and these are:
- Lay Deputies – These deputies are usually family members or very close friends who have capacity, are over 18 years old and are not bankrupt. They cannot be paid for their time from the assets of the person who lacks capacity.
- Professional Deputies – These deputies are usually solicitors or accountants and are usually approached by family members, close friends or Social Services. Professional Deputies are paid for their time under the Court of Protection fee guidelines.
- Panel Professional Deputies – These deputies are appointed by the Office of the Public Guardian. Panel Professional Deputies are also paid for their time under the Court of Protection fee guidelines.
Jennifer Murphy, Head of Private Client Department is on the Panel of Deputies, one of only 71 in the Country.
When becoming a deputy one must be fully aware of a deputy’s duties and powers, statutory principles, the code of practice and the Mental Capacity Act 2005 (these are all lengthy documents and should be read in full to ensure you understand them).
All applications must be supported by medical evidence of lack of capacity and there are lengthy application forms which must be completed, giving extensive information about the incapacitated person’s personal circumstances, their family and background, details of their financial affairs, and care arrangements. Uncontested applications will usually proceed without the need for a formal hearing, but if there are any disputes as to who should be appointed or involving any other aspect of the application, a Hearing will be necessary. Once a Deputy has been appointed they must then act in strictly within the limits of the authority granted to them by the Court and will be subject to the Court’s supervision.
There are special rules in relation to the sale of property when it is held jointly by the person who lacks capacity
The whole process is lengthy, assuming there are no objections to the application, the application will usually take in the region of 4-6 months to complete, but if there are objections or disputes, the application will take longer.
The Court has the power to dismiss an application by an individual friend or family member if the Court feels their appointment would be inappropriate and in such circumstances the Court would then usually appoint a Panel Deputy. This is likely in the case of family disputes over who should be appointed or if there any other concerns raised with the Court during the application process.
If you would like to become a lay deputy for a family member or close friend or would like us to act as their professional deputy, we have a specialist team with years of experience able to assist in the making of the application.
COST OF COURT OF PROTECTION WORK
We are proud that our Court of Protection team is a truly specialist team, headed by Jennifer Murphy, an Executive Partner and one of only 71 people in the Country to be on the Panel Deputies maintained by the Court of Protection – https://www.gov.uk/guidance/panel-deputies-list-of-court-approved-professionals . The Court appoints a Panel Member in cases where there is no other suitable person to act for the incapacitated person, often these cases will be complicated because there may have been financial impropriety in the past or because a person’s affairs have been neglected for long periods of time.
We also deal with many applications to the Court of Protection on behalf of individuals seeking to be appointed to act for incapacitated relatives and also applications where there is a request for Jennifer to accept the appointment to act as a Deputy for the incapacitated person when there are no family members able to take on the role.
We not only deal with applications for the appointment of Deputies but in cases where Jennifer is the appointed Deputy, we also deal with the ongoing administration of the incapacitated financial affairs.
Jennifer is currently the acting Deputy for in excess of 60 clients who affairs differ in complexity greatly.
We are also able to offer services to appointed Deputies to provide support and advice when required and to assist with the preparation and filing of their annual deputyship accounts.
In most cases, our costs will be assessed by The Courts Costs Office who will review our file to verify the fees charged are appropriate to the case. The fees will be assessed on the basis of the hourly charging rates set out below, https://www.judiciary.uk/wp-content/uploads/2017/03/practice-direction-b-fixed-costs-in-the-court-of-protection-01-17.pdf
dependent on the work undertaken and the seniority of the fee earner undertaking the work.
- Grade A – £217.00 per hour – solicitors and legal executives with over 8 years’ experience
- Grade B – £192.00 per hour – solicitors and legal executives with over 4 years’ experience
- Grade C – £161.00 per hour – other solicitors or legal executives or fee earners of equivalent experience
- Grade D – £118.00 per hour – trainee solicitors, paralegals and other fee earners
All fees are subject to VAT, which is currently payable at the rate of 20%.
There are circumstances, depending on the level of work undertaken in respect of a matter, the complexity of that work and also the value of assets involved, when we may accept fixed fees for work in lieu of assessed costs.
Fixed fees are set by the Court at the following rates:
- Work up to the date of Deputyship Order £950.00 plus VAT
- General administration for the first year of Deputyship from date of Order £1,670.00 plus VAT
- General administration for second and subsequent years £1,320.00 plus VAT.
- Preparation and filing of Annual Report £265.00 plus VAT unless it is complex when costs will be assessed
- Preparation and filing of annual basic Tax Return £260.00 plus VAT
- Preparation and filing of annual complex Tax Return £600.00 plus VAT
Please note you will be provided with more personalised advice cost at your initial meeting when it will be confirmed if fixed or assessed costs will be charged, depending upon the complexity of the instructions provided.