The top six things you need to know about deputyship

Deputyship is not a straightforward process and often requires the assistance of a legal expert.

A surprisingly large number of people assume that when they can’t make decisions for themselves, their spouse or children will automatically have the power to access their bank accounts, pay bills, sell the house to pay for care, plus making important decisions about their health and care. Unfortunately, it is not the case.

The laws on who can make decisions for you (in the event that you lack mental capacity to do so yourself) are clear – only your appointed people (known as your ‘attorneys’) stated in the lasting power of attorney documents can help you make decisions or to make decisions on your behalf. Despite the name, your attorneys do not have to be part of the legal profession – they can be your spouse, a trusted family member, a caring lifelong friend, and/or your adult child.

In the event that you haven’t yet appointed an attorney, then your spouse or a relative has to apply to become your deputy if you lack mental capacity. For instance, you have had an accidental slip and suffered a serious brain injury, or you have dementia and the disease is getting worse and affecting your ability to make decisions.

In this article, our protection of the elderly legal team looks at deputyship and the top six things you need to know about deputyship and how it differs from a lasting power of attorney.

1. Deputyship is authorised by the Court of Protection

Contrary to a lasting power of attorney, a deputy can only be authorised by the Court of Protection. When a loved one cannot make a decision for themselves at the time it needs to be made, and the person has not appointed an attorney, then their spouse or a relative has to apply to the Court of Protection to become a deputy.

The Court of Protection will review the case and give the deputy a court order which spells out what the deputy can or cannot do. For instance, the deputy must consider the level of mental capacity (of the person you’re a deputy for) every time you make a decision for them. It will be wrong to assume that the mental capacity is the same at all times and for all kinds of things, according to the Court of Protection.

When it comes to decision making, guidance for all deputies include:

  • Make sure it is in the person’s (whom you’re a deputy for) best interests.
  • Consider what they have done in the past.
  • Apply a high standard of care; this might mean involving other people, for example getting advice from relatives and professionals like doctors.
  • Do everything you can to help the other person understand the decision, for example, explain what is going to happen with the help of pictures or sign language.
  • Add the decisions to your annual report.

2. Two types of deputy

Similar to a lasting power of attorney, there are two types of deputy:

  • A property and financial affairs deputy can access your bank accounts, manage bills, and sell your property to pay for care.
  • A personal welfare deputy makes decisions about your medical treatment and how you should be looked after.

The court can appoint two or more deputies for the same person, or there could be more than one deputy. If there are multiple deputies, they must tell the court how the decisions will be made (either joint deputyship or jointly and severally).

Having said that, the court will usually only appoint a personal welfare deputy if:

  • There is doubt whether decisions will be made in someone’s best interests, for example when family members disagree about care.
  • Someone needs to be appointed to make decisions about a specific issue over time, for example where someone will live.

3. The application process is long

Appointing a lasting power of attorney usually takes between 8 to 10 weeks to register an LPA if there are no mistakes in the application. On the other hand, the application process to become a deputy often takes more than 3 months.

There are also several forms involved, including:

  • The main application form
  • Assessment of capacity
  • Supporting information for property and affairs if it is relevant
  • Supporting information for personal welfare if it is relevant
  • Deputy’s declaration

The declaration will outline your circumstances and include details of the
responsibilities and duties you as a deputy must carry out. You must prove to the Court of Protection that you have the skills, knowledge and commitment to carry them out. You must also assure them that there is nothing that might make your appointment inappropriate – for example, you are not bankrupt and do not suffer from poor health.

In addition, once applied, there is a 14-day wait to see if anyone else objects you as the deputy. For a personal welfare deputy, be prepared for a hearing so the court can get more information.

Because the process is long, there are situations when you need to make an emergency application. For instance:

  • The person needs urgent medical treatment
  • The person is about to be removed from the place they are living unless an intervention takes place
  • To execute a statutory Will or important financial transaction because the person is expected to die soon

4. Deputyship is costly

When it comes to deputyship, there are several fees to pay.

  • The application fee for each type of deputyship is £365 (or £730 for both types).
  • If the court decides your case needs a hearing, add £485 on top.
  • A £100 assessment fee for each new deputy.

Subsequently, after a deputy is appointed by the court, there is an annual supervision fee depending on what level of supervision your deputyship needs. In general:

  • £320 for general supervision.
  • £35 for minimal supervision – this applies to some property and affairs deputies managing a budget which is less than £21,000.

For a property and affairs deputy, there is also a security bond involved. The aim of the bond is to make sure that the deputy doesn’t misuse the money whom he/she is a deputy for. The amount of the security bond depends on:

  • The value of the estate of the person one is a deputy for
  • How much of their estate the deputy controls

As you can see, becoming a deputy is a costly exercise. On the other hand, if you have appointed a lasting power of attorney, the LPA registration process would only set you back £82 for each type of LPA (or £164 to register both types of LPA).

5. A report must be summited each year

A deputy must write a report each year explaining the decisions they have made as a deputy. If the Office of the Public Guardian (OPG) needs additional information, the deputy will be required to write more reports.

The main report must include:

  • The reasons why decisions are made, like why they were in the best interests of the person you’re a deputy for.
  • Individuals you have spoken to and why what they said was in the person’s best interests.
  • For a property and financial deputy, information about the finances of the person you’re a deputy for must be included.

6. A deputy is likely to need the help of a solicitor

The process of becoming a deputy is long and costly, and the subsequent legal requirements like security bond, manage a Court Funds Office account, and report writing are also complex. More crucially, this happens at a time when the person you want to be a deputy for cannot make decisions for themselves. It is painful to know that you aren’t able to help the person immediately unless the Court of Protection has approved your application, or unless you have made an emergency application.

To make sure that the application goes through without a hitch and the subsequent requirements are handled carefully, most families turn to an experienced solicitor like us for assistance. Our solicitors for the elderly have been assisting families in South Yorkshire, North Nottinghamshire and Derbyshire to plan and safeguard their interests. Contact us today to kick-start a conversation on how we can assist you and your loved ones.

Plan for the future with a lasting power of attorney instead

Deputyship has pitfalls, as illustrated by the points above. To save your loved ones from going through the deputyship process, you can start appointing two lasting power of attorneys (LPA) instead – one for property and financial affairs and another one for health and welfare.

Once your LPAs are registered, you will have peace of mind in knowing that they are legally appointed and trusted individuals who can safeguard and protect your interests. Should an unfortunate event happen later, your spouse, children and relatives do not have to face the complications of a deputyship application nor manage the ongoing legal requirements.

Making an LPA application is easy if you have one of our solicitors working with you. Otherwise, mistakes in the application will see the Office of the Public Guardian rejecting your application, costing you time and money.

Call any of our local Foys offices today

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This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.

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