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Five FAQs Regarding Deputyship

Five FAQs Regarding Deputyship

The fact we are all living longer, healthier lives than ever before is something to celebrate.  However, the longer we live, the greater the chance of succumbing to old-age diseases such as cancer, strokes, and dementia.

These types of illness can leave a person unable to manage their affairs and make decisions regarding their welfare.  This can lead to severe consequences, especially if a Lasting Power of Attorney is not in place.

Under the Mental Capacity Act 2005, the Court of Protection can appoint someone as a deputy to manage the affairs of a person who lacks mental capacity.  A friend or relative can be a deputy, as can professional advisors such as solicitors and accountants.

Below are the answers to the most common questions we get asked about deputyship.

  1. Are there different types of deputyships?

There are two types of deputyships – property & financial and personal welfare.

Property and financial deputyships can administer the economic affairs of a person who lacks the capacity to do so themselves.  If you are appointed as a property, and financial deputy, the Court of Protection can grant you the power to:

Personal welfare deputies are rarely appointed.  The Court will only generally only appoint a personal welfare deputy in cases where regular treatment and supervision is essential.  The Mental Capacity Act 2005 states that if the Court does appoint a personal welfare deputy, their powers should be limited in scope and duration as much as reasonably possible.

  1. How do I apply for deputyship?

Anyone can make an initial application to the Court of Protection to have a deputy appointed on behalf of someone who lacks mental capacity.  Usually, it is a concerned relative or friend.

The Court will carefully consider who it will appoint as a deputy.  If you are making an application for deputyship, you need to fill in and submit the following forms to the Court of Protection:

A solicitor can help you complete the application.  The Court will then decide on who should be appointed as a deputy based on the information contained in the forms.  The paramount consideration will be the welfare of the person subject to the deputyship.  In the case of Re AS [1], Senior Judge Lush indicated that the Court favoured a family member or close friend if possible to act as deputy, as such a person will already be acquainted with the subject’s affairs, wishes and ways of communication.  The Court will also examine the history of the subject to try and ascertain their wishes.  For example, if they have appointed executors in their Will or previously entrusted some aspect of their financial affairs to a particular person, these individuals may be made deputies as it could be assumed the subject would have chosen them if he or she had made a Lasting Power of Attorney.

If the subject’s property and assets are substantial, a professional deputy may be appointed.  This does not necessarily mean the Court doubts your ability to manage the financial affairs; they may simply conclude you would not have the time to take on the responsibility.

  1. How long does it take to have a deputy appointed?

The process for appointing a deputy is far from swift – normal time frames run to around 16 weeks from application to appointment.  Complex cases can take even longer.

One way to avoid unnecessary delays is to fill in application forms correctly initially.  It pays to have an experienced solicitor do this for you.  They can also liaise with officers of the Court on your behalf and answer any questions they may have.

  1. What are the responsibilities of a deputy?

Becoming a deputy carries considerable duties and responsibilities.  For example, when executing their duties, a deputy must:

  1. Can a deputy be removed?

There are some situations in which it becomes inappropriate for a person to continue to act as a deputy, for example, if they fall out with the subject or their family, or are discovered to be abusing their position.  However, due to the time and consideration taken by the courts when appointing a deputy, removals are rare.

Final words

Deputyship is not easy.  However, not only can a solicitor assist you with making an application for deputyship, but they can also help guide you through the process if you are appointed, providing advice on how to execute your duties professionally, and in the best interest of your loved one.

Hart Reade Solicitors is a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads.  We hold a Lexcel accreditation from the Law Society of England and Wales and are members of The Association of Lifetime Lawyers.  To make an appointment with one of our private client solicitors regarding deputyship, please phone our office on 01323 727 321 or use the enquiry form below.

Please note, this article does not constitute legal advice.

[1] [2013] COPLR 29