Court of Protection: Lay deputy services

A deputy is an individual appointed by the Court of Protection to make decisions in relation to the property and financial affairs or the health and welfare of an individual who is assessed as lacking the mental capacity to make decisions in relation to these themselves.

There are two types of deputy who can be appointed by the Court of Protection:

Property and Financial Affairs Deputy

This is the most common type of deputyship and enables the deputy to make decisions in relation to an individual’s property and financial affairs.

A property and financial affairs deputy will take responsibility for managing the day to day finances of an individual, as well as the investment of their funds and management of any property held.

Our specialist team act as professional property and financial affairs deputy for individuals with large complex damages settlements, as well as making applications to the Court of Protection for the appointment of a non-professional deputy where this is appropriate.

Personal Welfare Deputy

A personal welfare deputy makes decisions about medical treatment and how someone is looked after. It is normally not suitable for someone outside of the family to have this responsibility, other than at times an Independent Social Worker, or Local Authority.

A personal welfare deputy cannot refuse life-prolonging treatment and will only be appointed in very specific circumstances.  Unless there are a number of connected decisions to make the court will often prefer to make decisions as they arise rather than appoint a personal welfare deputy.

Our team can discuss the appointment of a personal welfare deputy with you in more detail should you have queries about this.

The role of a Deputy is very similar to the role of an Attorney under an Enduring or Lasting Power of Attorney.

A Lasting Power of Attorney is set up by an individual before they lose capacity. It allows the individual to confirm who they would like to manage their property and financial affairs in the event that they lose capacity in the future.

If a Lasting Power of Attorney is not in place and an individual lacks capacity to manage their property and financial affairs then a Deputy is required.

Hugh James has a dedicated asset management team, who can advise you on appointing a Power of Attorney.  Visit the Asset Management page for more information.

A deputy needs to be appointed if an individual lacks the required capacity to make decisions in respect of their own property and financial affairs and they do not have a Lasting or Enduring Power of Attorney in place. The individual will lack capacity because of an impairment  of or disturbance in the functioning of the mind or brain.

The issue of capacity is governed by the Mental Capacity Act 2005. Someone lacking mental capacity, due to illness, accident or disability is unable to do one or more of the following four things:

• Understand information given to them about a particular decision, to include the consequences of making a decision one way or another or of not making a decision.
• Retain that information long enough to be able to make the decision.
• Weigh up the information available to make the decision.
• Communicate their decision.

Before an application is made to appoint someone as deputy for an individual, a capacity assessment needs to be undertaken by a medical practitioner to confirm that the individual lacks capacity to make decisions in relation to their property and financial affairs.

The Court of Protection general order appointing a deputy will confirm the extent of the deputy’s powers to manage the property and financial affairs. Any decision which falls outside these powers will need to be decided by the Court Of Protection.

Appointing a Lay Deputy

For individuals whose financial situation is straightforward it may be appropriate for a family member to be appointed as deputy. In these cases we are able to assist with the application through the Court to obtain the necessary order.

Appointing a deputy can be a lengthy and complicated process as the Court of Protection needs to be sure that the individual does indeed lack capacity and that there are no issues with the proposed deputy being appointed. Our Court of Protection Deputy team can ensure that this application process is dealt with smoothly and the correct order obtained.

Specific Applications to the Court

The powers of a deputy are limited and some decisions need to be made by the Court of Protection.

In these circumstances, a detailed application has to be made to the Court of Protection to allow them to make a decision.

Examples of situations where a specific application may be needed are:

1. Purchasing or selling a property if this is restricted by the order
2. Giving gifts outside of the scope of the order
3. Exceeding a spending limit set by the court
4. Making a statutory will (link to specific page)
5. Making a decision relating to the person’s health and welfare where there are disagreements about what is in their best interests (for example on issues such as where they should live and who they should have contact with)
6. Any other situation where a decision is outside of the authority of the deputy, or the deputy feels that the decisions is of such importance that it should be made by the Court of Protection.

There may be other situations where an application to the Court is necessary and if you have any concerns about the decisions you are making as deputy you should contact a specialist Court of Protection solicitor urgently.

For advice about understanding your deputy order, or whether an application is required please contact our team of expert Court of Protection lawyers on 02920 391031.

Acting as deputy

Once you are appointed as deputy, our team are also able to provide specialist advice and assistance as to the obligations imposed on a deputy, to include:

1. Providing professional advice and assistance in running deputyships
2. Assisting with annual returns to the Office of the Public Guardian
3. Assisting with tax returns
4. Applications to the Court of Protection for statutory wills (link to stat wills page), gifts, property purchases, gratuitous care payments and change of deputy to include retrospective applications
5. Applications to the Court Fund Office for the payment of funds and closure of the account
6. Arranging investment advice.

If you have any queries about acting as a deputy and your obligations and responsibilities please contact our team of specialist Court of Protection lawyers on 02920 391031.