Court of Protection
In the unfortunate situation that an individual loses mental capacity, perhaps as a result of dementia or a stroke, they may need to rely on someone else to make decisions on their behalf.
If the individual has drawn up a Lasting Power of Attorney, they will have already appointed a person of their choice to handle their affairs in the event of their incapacity.
However, in the absence of a Lasting Power of Attorney a family member or loved one may need to make an application to the Court of Protection to be appointed as a ‘deputy’ for the person who is incapacitated.
What is a deputy?
Someone who lacks mental capacity may be unable to manage their personal affairs or make important decisions about their medical care or living arrangements. A deputy can make these decisions on behalf of the individual once given the authority to do so by the Court of Protection.
Invariably, a deputy will be a family member or friend, although in some situations the court may appoint a solicitor to act as a deputy. Being a deputy is a long-term commitment. Amongst other obligations, the deputy must protect the individual’s confidentiality, act with due care and in accordance with the terms of the Court’s directions.
There are two types of deputy – property and affairs, and personal welfare.
Property and affairs deputy
The most common appointment is that of a property and financial affairs deputy. This enables the deputy to manage someone’s financial affairs on their behalf, which includes handling bank accounts, dealing with utility bills and investments and selling a person’s property. If the person who has lost capacity owns property jointly with someone else, then a special order appointing Trustees may be needed in order to sell any jointly owned property.
A property and affairs deputy must keep proper accounts and is required to protect the individual’s financial assets by arranging a security bond.
Personal welfare deputy
Where an individual is unable to make decisions about their own welfare, medical treatment or care, an application to become a personal welfare deputy can be made. The appointment of a deputy for personal welfare is only made in unusual or extreme circumstances where there are serious concerns over the individual’s care.
How can we help?
Should you find that a family member or loved one is unable to make decisions on their own behalf, we can provide the specialist legal advice you need to guide you through the process.
We are able to make the necessary applications to the Court of Protection on your behalf and assist deputies with the preparation and completion of annual accounts for submission to the Office of the Public Guardian.
However, whilst applications to the Court of Protection are sometimes necessary when a person has become mentally incapable, the process of applying for deputyship takes time and can be costly.
In most cases, this process could be avoided entirely if a Lasting Power of Attorney had been drawn up whilst the individual still had full capacity, giving the peace of mind that their affairs will be managed exactly as they wished.