A person who does not have capacity to manage their own financial affairs will usually need either a Deputy or an Appointee. An Appointee is usually a close family member and is appointed by the Department for Work and Pensions (“DWP”). A Deputy is appointed by the Court of Protection and can either be a professional, such as a solicitor, or a friend or family member. There are various costs and administrative requirements associated with deputyship. The costs can include legal fees for preparation of the initial application, as well as ongoing legal fees if a solicitor is appointed as a professional Deputy; the costs of obtaining a capacity assessment; the court fee for making the application (now £408); fees charged by the Office of the Public Guardian (“OPG”) for supervision of the deputyship; and the cost of obtaining a Deputy Bond (a kind of insurance policy that deputies are required to hold, against which a claim can be made in the event that a deputy causes financial loss through acting inappropriately). Deputies are also required to submit a report annually to the OPG, documenting the financial decisions they have made on P’s behalf over the past year. The costs of the deputyship can be met from the funds of the person who lacks capacity (referred to by the Court of Protection as “P”), but depending on P’s circumstances, it may not be proportionate or affordable to pay these costs. However, in some cases it may not be necessary to appoint a Deputy at all, as Appointeeship may be sufficient. What is the difference between a Deputy and an Appointee? There are two main differences between a Deputy and an Appointee: The extent of the powers granted – a Deputy has much wider power to act on P’s behalf than an Appointee; and The process involved in being appointed to the role – the process to become an Appointee is much quicker than to become a Deputy. Powers of a Deputy A Deputy appointed by the Court of Protection has wide powers to deal with the property and financial affairs of P. Their authority is not unlimited, and there are some areas in which a Deputy either cannot act on behalf of P at all (such as consenting to marriage) or where they require specific permission from the Court to do so (such as buying or selling a property for P), but overall they have broad powers to manage P’s day-to-day affairs in much the same way as P would if they had capacity to do so. This includes opening and managing bank accounts in P’s name, signing a tenancy agreement, entering into contracts on P’s behalf with businesses from whom P may receive services, such as utility companies, investing P’s funds or appointing an investment manager to do so, acting as the employer for P’s employed carers etc. Powers of an Appointee The powers of an Appointee are much more limited and relate solely to management of state benefits. An Appointee can make applications for state benefits on P’s behalf and communicate with the DWP in relation to P’s benefit claims. An Appointee is also authorised to receive P’s benefits directly into a bank account managed by them and to spend the funds received in P’s best interests. They have a duty to tell the DWP about any changes to P’s circumstances that may affect their benefits entitlement and, if they fail to do so, they may be held responsible if P’s benefit is overpaid. A Deputy will often also act as P’s Appointee in order to manage their benefits in the course of carrying out the role of Deputy. Process - Deputyship Deputies are appointed by the Court of Protection. This can be quite a lengthy process, as it is necessary to have P’s capacity assessed to confirm that they do indeed lack capacity to manage their own property and affairs, and then to complete several application forms, including providing quite detailed information about P’s finances. It is also necessary to notify at least three members of P’s family or friends (or professionals involved with P, if they do not have any family or friends to notify) of the application before submitting it to the Court. Those notified are given the opportunity to say whether they agree or disagree with the application before a decision is made. Once the application has been submitted to the Court for consideration it can take several months to receive a response confirming whether the applicant has been appointed as P’s Deputy. It is not unusual for the entire process to take six months or more, even in straightforward cases where no objections are made to the application. Process - Appointeeship Appointees are appointed by the DWP and the application process can be started by making a telephone call to the appropriate service within the department. Which service to call depends on which benefit P is claiming. More details about this can be found on the gov.uk website in the section about becoming an appointee. After somebody applies to become P’s appointee, the DWP will usually arrange to visit P, to assess whether they do in fact need an Appointee. If they are satisfied that P does need an Appointee to manage their benefits for them, they will then arrange a meeting with the person applying to become P’s Appointee, in order to confirm that they are a suitable person for the role. During that meeting, the interviewer and applicant will complete and sign an Appointee application form together. After the interview, the DWP will write to the applicant to confirm whether their application to act as Appointee for P has been approved. There is no statutory timeframe within which the DWP must make a decision about an application to become an Appointee, but it can take up to 12 weeks. Which do I need? In order to decide whether Deputyship or Appointeeship is more appropriate for P, it is necessary to think ahead and consider what financial decisions are likely to be needed on P’s behalf in the foreseeable future, and what financial resources they will have available to them. If P is likely to be able to live independently in the future (perhaps with support from paid carers), deputyship is likely to be more appropriate, as an Appointee would not have authority to either buy a property in P’s name or sign a tenancy agreement on their behalf. Nor would they be authorised to enter into contracts for utilities, etc. in P’s name at their property. Regardless of P’s living arrangements, appointment of a Deputy is likely to be necessary in any cases in which P has significant financial resources, such as if they have received or expect to receive a personal injury settlement, or an inheritance from a loved one. These funds will need to be responsibly managed on P’s behalf, including considering investment, and the powers conferred upon an Appointee will not be sufficient for these purposes. However, if P is expected to live with family for the foreseeable future, does not own a property, does not have savings or investments, and does not receive any income other than state benefits, it is likely that an Appointeeship could provide sufficient authority to do everything required in order to manage P’s finances. If you support a person who you believe lacks capacity to manage their own financial affairs and are not sure whether their financial circumstances warrant a Deputyship application, you can contact our Court of Protection team, who are able to advise on this and all aspects of the Deputyship application process, by emailing courtofprotection@boyesturner.com or calling us on 0118 959 7711.