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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.
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The application for Deputyship includes the completion of paperwork for the Court, including a statement of the client’s assets and income, a medical certificate regarding the capacity of the client and a deputy’s declaration. These will need to be fully completed and returned to the Court of Protection with the commencement fee.
In certain circumstances the fee can be waived if it can be shown that the fee would cause hardship. Even though the forms are lengthy, once the Deputy is set up and in place it will provide the best possible protection for the client.
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.
A Deputy has several duties which can include:
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.
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”. Thus, 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.
A Deputy can be appointed by the Court to act as a:
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. Please click here to see the standard set rate. These are the rates set since 2010 which have not changed.
Other fees to consider are as follows:
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.
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 supervise 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.
Acting as a Deputy is a responsible position with considerable paperwork. We get to know our clients well, visiting them at home and getting to know their families.
All decisions are always made in a client’s best interests, leaving the family free to concentrate on the care of their family member and not be burdened by paperwork.
We also understand the emotional and practical implications in acting for a person who lacks mental capacity and the impact this can have on families. By appointing us as a professional Deputy the family will have peace of mind in the knowledge that their family member is well supported and all financial paperwork is in order.
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Associate - Solicitor
Senior Associate – Chartered Legal Executive
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