Deputyship solicitors

Our Court of Protection service regularly deal with completion of such accounts and ensure that they are submitted in good time. 

However ultimately it is the Court who makes this decision as to whether a person lacks capacity.

Read more on the Mental Capacity Act 2005.

Alternatively, a person who lacks capacity to manage their financial affairs may have capacity to make a will and medical evidence will need to be sought to support this.

Property and affairs Deputy

This is a Deputy who makes decisions about property and financial affairs including the sale and purchase of property.

Health and welfare Deputy

This is a Deputy who makes decisions about health and welfare, including treatment options. However, a Deputy cannot refuse consent to life sustaining treatment and such Deputyship orders are uncommon as the Courts generally prefer to rely on Section 5 of the Mental Capacity Act 2005 which deals with decision-making for care and acts in connection with care or treatment. Typically, if a decision is specific then the Court of Protection will need to be involved but if the decision relates to general day to day health and welfare matters then Section 5 will suffice. For a health and welfare Deputy the Court will need to see a pattern of specific health and welfare decisions that need to be made before they grant a health and welfare Deputyship order.

In addition, it could be the local authority or a solicitor. When a person lacking capacity has a large estate or where there is a large compensation award, then a professional Deputy will almost always be appropriate. Professional Deputies carry their own personal indemnity insurance through a security bond, which will be in addition to the insurance that a standard Solicitor has through their firm.

If a person has already prepared a Lasting Power of Attorney (LPA), which has been registered, then it is unlikely that a Deputyship order is required. However, if the LPA has not been registered and is later proved to be incorrect, then a Deputyship order will need to be applied for. This is specifically the case if a person loses capacity. If this is the case, then an application will need to be made to the Court of Protection asking the Court to appoint a Deputy, in the same way that an individual would request their attorney to act under an LPA. Please note that an LPA can only be taken out by a person over the age of 18 who has capacity to understand the document at the time it was signed.

In some instances, Deputies are appointed to act for children who have suffered catastrophic injuries at birth and need a Deputy to manage the compensation award for their benefit. 

An application will need to be obtained from the Court of Protection and an application form completed, together with a statement as to the client’s assets and income, a medical certificate regarding capacity of the client and a declaration by the Deputy. This will need to be accompanied by a commencement fee payable to the Court which is £365.

The certificate of medical evidence is usually completed by a medical practitioner such as a person’s GP or psychiatrist although sometimes a psychologist or social worker can complete the form where appropriate. It is likely that a fee will be charged.

However, be aware that it can take several weeks to obtain the report on capacity from the doctor, prior to submitting the application to the Court.

• The medical practitioner may charge a fee for completing the certificate. 
• The Court application fee is £365
• The appointment of Deputy fee is £100
• The annual supervision fee is £320
• The Senior Court Costs Office fee to assess the bill of costs is either £115 or £225, depending on whether legal fees are over or under £3,000

The Deputy also has to take out a “security bond” to cover their actions as a Deputy and this will be payable annually. The bond is set by the Court and depends on the value of the assets under the control of the Deputy. The bond fee varies but will be reduced if a professional Deputy is appointed as they have their own personal indemnity insurance in place. The security bond fee is usually between £100-300.

All fees are payable from the assets of the person who lacks capacity, and usually the solicitor will agree to postpone fees until the Deputy has access to the bank account.

This may involve a visit from a visitor from the OPG on an annual or ad hoc basis, and annual accounts will need to be submitted each year.

If a person recovers capacity then medical evidence will need to be submitted to the Court of Protection and this is usually a straightforward application. 

Appointees are appointed by the Department for Work & Pensions (DWP) and are provided with the authority to manage the state benefits of the client.

A Deputyship works in the same way as an appointeeship but offers the protection of the client’s assets, savings or property. In effect, Deputies cover all of the client’s assets and not just state benefits. Deputies are appointed by the Court of Protection and the Office of the Public Guardian supervises the work of the deputies appointed by the Court. Deputies are provided with a legal order allowing them to act for individuals in respect to all aspects of their financial affairs.