If someone has lost the mental capacity to manage their own affairs it is often down to their family to make suitable financial arrangements. If the person had the foresight to previously make a Power of Attorney, then an appointed person will have authority to manage their financial affairs.
However, it is often the case that no Power of Attorney is in place and the family is left with no legal authority to deal with the relevant institutions, such as utility companies, building societies, banks and pension providers.
In most cases, an application needs to be made to the Court of Protection under the Mental Capacity Act 2005 for an order appointing someone as a Property and Affairs Deputy.
Sometimes, a Health and Welfare Deputy is also appointed if there is an ongoing disagreement about where a person should live or their medical treatment.
A deputy’s responsibilities are quite onerous and it is important to take professional advice about the process from a court of protection solicitor who specialises in this kind of work. Any legal costs are usually paid from the funds of the person lacking capacity.
Lanyon Bowdler is one of the few legal practices in the area to have its own specialist Court of Protection department, with a wealth of experience and knowledge.
Deputy applications are legal documents which allow you to apply for a decision from the Court of Protection, on behalf of another person. You can be a deputy if you have been granted legal authority by the court over another person's affairs and assets.
This role requires at least one application and usually involves an assessment by a local authority social worker, GP or independent nurse looking into:
There are many different types of cases involving deputyship. This may be full time, part time or even just on certain issues like medical treatment.
Deputyship is only suitable if someone loses their mental capacity as a result of illness or accident. If it's due to old age then an enduring power of attorney might be more appropriate.
There is some overlap between deputyship and a lasting power of attorney.
A person can be both a deputy and an attorney, but they don't have to provide the same type of authority over another's affairs or assets. This means that someone could grant one person legal authority for health care decisions, while also granting another person legal authority for financial decisions.
A lasting power of attorney arrangement is made when the individual has the capacity to make these types of decisions for themselves, in preparation for the time when this might no longer be the case. An LPA identifies who you want to look after your health and welfare should you lose capacity in the future. Deputies are appointed after the person has lost their mental capacity if a power of attorney wasn't already put in place.
It can be set up by anyone over the age of 18 as long as they are deemed to have the capacity to do so.
The person who is appointed as a deputy can make decisions about where someone lives, their medical treatment (including refusing certain types of treatment), who they associate with, and how their money is spent. The deputyship must be registered in order for that deputyship to have legal authority over another individual's affairs or assets.
Family members are often involved in applying for deputations on behalf of loved ones because family members know the patient best. Mental health professionals may also apply if there has been an assessment which indicates it would benefit the adult to have a deputy.
Yes, deputyship does not mean that a patient loses any rights they would ordinarily have. A deputy could apply to the court of protection to change a Will if they consider that to be in the person's best interests.
The deputy can make decisions which could include changing the person's will and appointing new trustees if necessary. If there is no Will in place, then deputyship provides legal authority to distribute property as appropriate for the individual concerned; this would be done according to their wishes as known by those who know them best. An executor or administrator may apply on behalf of an estate where there has been deputyship granted over someone's affairs but now they are deceased.
Deputies must be registered with the Office of the Public Guardian (OPG) before acting under deputation so this should always be considered when making applications for deputyships from the Court of Protection.
For further advice on deputyship applications, give us a call on the number at the top of this page, or complete the online enquiry form. We can also arrange a home visit if more convenient. We have offices in Telford, Shrewsbury, Oswestry, Ludlow, Bromyard, Hereford and Conwy, so are able to act for clients all over Shropshire, Herefordshire, Mid and North Wales and across the Midlands.
Lanyon Bowdler has offices in Shrewsbury, Bromyard, Hereford, Ludlow, Oswestry, Telford, and Conwy in North Wales.
We regularly assist clients with deputyship applications to the Court of Protection following Serious Brain Injury Claims across Shropshire, Herefordshire, Mid and North Wales, Birmingham and the Midlands. As a leading national law firm, we can represent you wherever you live in England, Wales or Northern Ireland.
For a friendly chat about how we can help, please contact Neil Davies, Head of Court of Protection.
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