Deputyship solicitors

A Deputy is appointed by the Court of Protection to manage the property and affairs or the personal welfare of a person who lacks capacity to manage them themselves. The Court will have to issue an order appointing the Deputy which will set out the Deputy’s powers and allow them to act on behalf of the person lacking capacity.

The Court of Protection is the court which specifically looks after individuals who lack capacity to make decisions for themselves.

A Deputy has several duties, which can include:

• Taking financial advice on the investment of client’s finances.
• Purchasing a property and adapting it to meet the client’s needs.
• Purchase of an adapted vehicle or equipment.
• Claiming benefits due to the client and liaising with the Department of Work & Pensions.
• Employing a case manager to oversee the client's care team and checking through carers’ contracts, as well as putting employer’s liability insurance in place.
• Arranging payment of various invoices as well as holidays for the client with their carer.
• Preparing a statutory will (for those over the age of 18).
• Completing annual accounts and submitting them to the Office of the Public Guardian.
• Completion of tax returns.
• Keeping client's property secure and in a reasonable state of repair, as well as adequately insured.
• Making sure client’s money is being used to give them the best possible quality of life.

There are 2 types of deputy, a property and financial affairs deputy and a personal welfare deputy. You can be just one type of deputy or both.

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.

The client may still be able to make some decisions for themselves even if a Deputyship is in place, as the legal test for capacity is “issue specific”. As an example, a person may not be able to make decisions about a large compensation award, but may be able to understand and manage a small amount of cash each week.

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.

Any person over the age of 18 can be a Deputy. However, the Deputy will need to declare any criminal convictions or bankruptcy arrangements to the Court, which could lead to the application being rejected. A Deputy can be a spouse, partner, or close relative.

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.

A Deputy is appointed when an individual’s affairs need to be looked after because the individual is unable to make decisions for themselves.

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.

Once the application has been sent to the Court, it can take up to 5-6 months for the appointment to be made. 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.

Boyes Turner arranges to have all of their professional Deputyship fees assessed by the Senior Court Costs Office, and we charge in accordance with the rates set in our area. This is to ensure that they are fair and reasonable. Other fees to consider are as follows:

• The medical practitioner may charge a fee for completing the certificate.
• The Court application fee is £408.
• 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.

Deputies are required to complete an annual account each year and submit it to the Office of the Public Guardian (OPG). This account details the financial transactions that have taken place over the last year and the OPG quite often asks for them to be supported by a copy of the Deputyship bank statements and may require copies of receipts.

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

When a Deputyship order is made the Office of the Public Guardian (OPG) will become responsible for supervising all Deputies.

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.

A Deputyship order is terminated when the person lacking capacity dies or recovers capacity.

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.

An appointeeship is to a person who just receives state benefits on another’s behalf, as that person does not have sufficient mental capacity to manage their own financial affairs.

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.

Mental capacity is assessed in accordance with the Mental Capacity Act 2005 and medical evidence is usually obtained, which the Court generally relies upon. 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.