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 68 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.