Deputyship

Deputyship

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.

Court Of Protection Deputy Solicitors

We are proud that our Court of Protection team is a truly specialist team, headed by Jenny Murphy, an Executive Partner and one of only 71 people in the Country to be on the Panel of Deputies maintained by the Court of Protection.

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 together with applications where Jenny Murphy accepts the appointment to act as a Deputy for the incapacitated person.

Where Jenny Murphy is the appointed Deputy, she is empowered to deal with the ongoing administration of the incapacitated person’s financial affairs.

We are also able to offer support to appointed Deputies, for example selling a property, making a statutory Will, renouncing an appointment when a Deputy no longer wishes to act or assistance with the preparation and filing of annual deputyship accounts.

What Is The Court Of Protection?

The Court of Protection is based in London and has a number of district judges as well as a senior judge who specialise in cases relating to protection and deputyship. Some cases, if extreme, will be heard by a High Court judge.

The Court of Protection can decide if someone lacks mental capacity to make a decision in relation to their health and welfare and/or finances. If the Court of Protection finds a person does lack the mental capacity to make a decision, the Court has the power to make a decision on their behalf and/or appoint a deputy who will then go on to make future/one-off decisions.

The Court have the authority to decide whether somebody can be deprived of their liberty under The Mental Capacity Act and deals with any objections made regarding an individual’s Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA).

The Court will handle emergency applications where urgent decisions are required, particularly if they feel an individual is in danger.

Court Of Protection and the Mental Capacity Law

The Court of Protection will deal with decisions/actions taken under the Mental Capacity Act. The Court will determine:

  • If someone lacks mental capacity.
  • Whether a deprivation of liberty safeguards authorisation has been granted lawfully.
  • The settlement of any disagreement over an incapacitated individual.
  • A series of decisions for an individual.
  • If an LPA, attorney or deputy needs to be removed.
  • Health/financial care, if there is nobody appointed to do so already.

What Is The Mental Capacity Act 2005?

The Mental Capacity Act 2005 (enforced since 2007) was put in place to empower those who do not have full mental capacity, to make decisions wherever possible and to maintain decisions within a legal framework

When Do You Bring Court Of Protection Proceedings?

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 an 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.

What Is A Deputy?

A deputy is someone appointed by the Court of Protection to be legally responsible for an individual when they do not have the mental capacity to do so themselves.

Lay Deputies and Professional Deputies

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 from the incapacitated person’s assets.

Panel Professional Deputies

These deputies are appointed by the Court of Protection. Panel Professional Deputies are also paid for their time under the Court of Protection fee guidelines from the incapacitated person’s assets.

Jenny Murphy, Head of Private Client Department is on the Panel of Deputies, one of only 71 in the Country.

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What Is The Process For Securing Deputyship?

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.

Application To Secure Deputyship

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 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.

DEPUTYSHIP TEAM

Our Court of Protection Deputy Solicitors Act as Deputies for a variety of vulnerable clients including:

  • Elderly clients suffering from memory loss, confusion or dementia
  • Clients with a learning disability
  • Clients that have a serious brain injury or illness
  • Clients with mental health problems
  • Clients who are vulnerable to financial abuse

How will our expert Court of Protection Solicitors Help You?

  • We can appoint a Professional Deputy.
  • We can provide support with administration and decision-making.
  • Our solicitors are able to act as professional deputies for property, financial, investment and inheritance tax affairs.
  • We can help with solving disputes over a relative’s finances.
  • We provide support and advice for those acting under a Power of Attorney.
  • We can assist with arranging for a property to be purchased and/or adapted to meet an individual’s needs.
  • We can help with the purchase of an adapted vehicle; including aids and equipment.
  • We can help to ensure that the person is receiving all benefits they are entitled to.
  • We can help to employ a case manager to oversee a care team.
  • We will help to arranging holidays with support staff.
  • We can assist with the submission of annual accounts to the Office of the Public Guardian and can arrange for the completion of annual tax returns as appropriate.
  • We will be available to contact for safeguarding concerns, risks around neglect, financial abuse and the need for best interests decisions or applications for aspects outside the deputy’s authority, such as for gifts or loans.
  • We can help with planning for later life.

FAQ’s

How Do I Apply to Make A Statutory Will?
To make a Statutory Will on someone’s behalf, certain factors should be satisfied. We can advise you about the process and the documents required.

In certain circumstances, it may be necessary for you to attend a hearing in the Court of Protection.

What Happens If I Don’t Make A Lasting Power Of Attorney And I Lose Mental Capacity?
If you lose capacity and have not made an LPA, somebody will need to act on your behalf and an application for a Deputy will need to be made to The Court of Protection.

This process can be lengthy, time consuming and expensive so it is best to have an LPA in place to avoid this occurrence.

When Can I Make A Lasting Power Of Attorney?
You can make a Lasting Power of Attorney (LPA) as long as you are 18 years of age or over and you have the mental capacity to do so. You can change your LPA at any time providing you still have mental capacity.

You should not feel pressurised by anyone, including friends or family members for you to appoint them as your attorney(s). A LPA is a legal document and depending on the wording within the document, can give your attorney full access to all your finances after registration so this should be carefully considered.

I Think That Someone I Know Is Financially Abusing A Friend/Relative Of Mine. What Do I Do? Is It Possible To Make An Application In An Emergency?
If you feel someone’s financial affairs or personal welfare may be at risk, it is important to notify the Court of Protection of this issue and without delay. If the Court feel this is a serious matter which needs swift action, a Court hearing may be held and an emergency Order may be made to protect the individual.
What Is A Statutory Will?
A Statutory Will under the Mental Capacity Act 2005 specifies that when someone lacks mental capacity, their financial affairs may be controlled by the Court of Protection. For example, if there has been an accident resulting in brain damage and the person in question did not make a Will the court may make a statutory Will on their behalf.
What Is The Office Of The Public Guardian?
The Office of the Public Guardian (OPG) is an executive agency which is sponsored by the Ministry of Justice. The OPG is in place to protect and maintain the lives of those who lack mental capacity and do not have the ability to make decisions for themselves.
What Is A Panel Deputy?
These deputies are appointed by the Office of the Public Guardian. Panel Professional Deputies are paid for their time under the Court of Protection fee guidelines.
Does My Deputy Make All My Decisions?
How many decisions a deputy makes on the behalf on an individual is dependent on how much power the deputy is assigned and the scale of the person’s mental incapacity.
What Are The Duties Of A Deputy?
The duties of a deputy will depend on the Order made by the Court of Protection and what degree of power is appointed. It must be seen:

  • That you have acted in the ‘best interests’ of the individual, with a ‘duty of care’ and in ‘good faith’.
  • That you have not delegated any of your duties (unless authorised to do so).
  • That you have reserved confidentiality and complied with directives of the Court of Protection.

If you are a deputy looking after the financial affairs of an individual, you must demonstrate that you maintain the individual’s accounts separate from your own and are following the Court of Protection Order(s).

What Does ‘Best Interests’ Mean?
Acting within the ‘best interests’ of a person means that any decision made for the individual has been taken solely to benefit that person, for their current circumstances and future.
What Is The Difference Between An Appointeeship And A Deputyship?
Appointeeship differs from deputyship as the role is assigned by the Department of Work and Pensions and solely manages an incapacitated person’s finances, whereas deputyship can manage all aspects of a person’s life. An appointee will:

  • Claim any benefits the individual is due, as well as sign forms on their behalf.
  • Notify the Department of Works and Pensions (DWP) if an individual’s circumstances change.
  • Pay expenses on the individual’s behalf, such as care home fees.
What Is A Deputy Solicitor?
Deputy solicitors are professional deputies who act on behalf of an incapacitated person if there is nobody suitable, if family members do not wish to take on the role or if a current deputy no longer wishes to act. The role of a deputy can be demanding and often complex, so hiring a solicitor can be the most beneficial option.
What Is The Difference Between A Lasting Power Of Attorney And Deputyship?
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.
How Is Mental Capacity Assessed?
Friends, family, health and social care workers or doctors will decide if someone lacks mental capacity. There must be reasonable belief that someone is no longer able to make decisions for themselves. Two questions determine the outcome:

  1. Does the person have a condition affecting their mind or brain?
  2. Does this condition lead to the individual being unable to make a decision, as and when they need to?
What Is ‘Lack Of Capacity’?
Having mental capacity means you are able to make your own decisions in day-to-day life. Someone who lacks mental capacity, for any reason such as an illness or disability, is unable to make a decision on a temporary or permanent basis.

Someone who lacks mental capacity is unable to:

  • Understand information or retain it long enough to make a decision.
  • Communicate the decision.
  • Evaluate or ‘weigh up’ the information to make a decision.

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.

CHARGING RATES:

  • 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.

About the Areas We Cover

OUR OFFICES

Brighton Solicitors

Lanes End House,
15 Prince Albert Street,
Brighton BN1 1HY
t. +44 (0)1273 323231
f. +44 (0)1273 820350
info@coolebevisllp.com

Horsham Solicitors

14 Carfax,
Horsham,
West Sussex RH12 1DZ
t. +44 (0)1403 210200
f. +44 (0)1403 241275
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Hove Solicitors

79 Church Road,
Hove,
East Sussex BN3 2BB
t. +44 (0)1273 722532
f. +44 (0)1273 326347
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Worthing Solicitors

5 The Steyne,
Worthing,
West Sussex BN11 3DT
t. +44 (0)1903 213511
f. +44 (0)1903 237053
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