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    26 May 2020

    Deputyship Orders: Q&A

    A Deputyship order from the Court of Protection performs a similar function to a Lasting Power of Attorney in that it grants an attorney the power to make legal decisions on behalf of the donor under the mental capacity act. However, applying to the Court of Protection to be a deputy can be an expensive and lengthy process.

    Q&A Deputyship Orders

    Our specialist Court of Protection lawyer, answers commonly asked questions including how to apply for a deputyship order through the Court of Protection, how long the process takes and talks us through a recent case study.

    Q1. Who can apply for a Deputyship Order through the Court of Protection?

    Technically anybody can apply to be appointed as a Deputy for somebody who lacks capacity, however that person must have a good knowledge of the personal and financial circumstances of the individual in question and justify to the Court why they are an appropriate candidate. They must be prepared to take on the many duties incumbent on a Court appointed deputy. These duties include keeping a note of decisions made, keeping a comprehensive record of all payments and receipts and having to file an annual report to the Office of the Public Guardian.

    Q2. How long does a Court of Protection application take?

    It usually takes 12 months to obtain an Order to appoint a Deputy for somebody who has lost capacity. Urgent applications can be made if there are extenuating circumstances.

    Q3. What is the difference between a Deputyship Order and a Lasting Power of Attorney?

    A Lasting Power of Attorney allows an individual to choose who they would like to appoint as attorney(s) to make decisions on their behalf regarding their property/financial affairs and their health/welfare if the individual lacks capacity to make decisions themselves. The process is straightforward and the costs are much less than an application for Deputyship. The document is made before an individual loses capacity and once registered with the Office of the Public Guardian it is ready to be used. The attorney does not need to account to the Office of the Public Guardian for their actions on a regular basis (although the OPG will make spot checks on many attorneys and can ask an attorney to provide information at any time).

    A Deputyship Order is applied for once someone has lost capacity and the person applying to become your deputy will not necessarily be somebody you would have chosen to be your attorney. The process is lengthy and the costs much higher than the costs of Lasting Powers of Attorney.  The Deputy must account to the Court or Office of the Public Guardian for all their actions and they are required to submit an extensive annual report. The Court of Protection is also very reluctant to appoint a Deputy to make health/welfare decisions unless there are extenuating circumstances and most orders are limited to property/finances only. Overall the process for Deputyship is lengthy and stressful for all parties involved and best avoided.

    Q6. What are the main issues faced when dealing with the Court of Protection?

    The process is slow and expensive.

    Q7. What is the mental capacity act?

    The Mental Capacity Act 2005 sets out five statutory principles which offer protection to somebody whose mental capacity may be in question. The principles stipulate that everybody must be assumed to have capacity unless it can be established that they do not; that all practicable steps must be taken to help a person to make a decision for themselves; that just because somebody makes an unwise decision this does not mean that they have lost capacity;  anybody making a decision for someone who lacks capacity must do so in the person’s best interests and they must consider whether the end result can be achieved in a way that is less restrictive of the person’s rights and freedoms.

    Q8. What questions are asked to assess capacity?

    This will be case specific depending on the individual in question and the decision to be made. If I am assessing a client’s capacity to give instructions for a Lasting Power of Attorney I will ask about their family history and assess their ability to recall personal information. I will ask them to explain to me why they have given the instructions they have and ask them to confirm their understanding of the purpose and nature of a lasting power of attorney. If their instructions are unusual in any way I will ask them to justify their actions. If I have any cause for concern I will engage the services of a professional third party to provide a capacity assessment.

    And finally, what could you expect when applying to the court of Protection?

    CASE STUDY: As an example of a Deputyship Application, I applied for a Deputyship Order for a client who had not made a Lasting Power of Attorney. The individual held joint assets with his estranged wife and the financial authorities would not provide me with the information needed to progress the Deputyship application due to the joint nature of the assets. I had to apply for an emergency ‘investigate and report’ order alongside the deputyship application. The individual also owned property jointly and so I had to apply for a third order to allow somebody else to be appointed to act as a Trustee in relation to the sale of the former matrimonial home. This whole process took 13 months to complete and the costs were over £6,000 (as assessed by the Court). This could all have been avoided if the client had completed a Lasting Power of Attorney for Property and Financial Affairs.

    If you would like to apply to the Court of Protection for a Deputyship Order, or you have further questions please contact our dedicated Wills, Trusts and Probate team on 01603 598000 or by emailing probate@steeleslaw.co.uk and they will be happy to assist.

    *The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.

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