Mental incapacity can unfortunately affect any of us, at any time, meaning that we may need some help to manage our finances or welfare.
People may lack mental capacity because, for example:
They’ve had a serious brain injury or illness
They have dementia
They have severe learning disabilities
If someone close to you lacks the mental capacity to manage their own affairs, our Court of Protection solicitors can provide practical help and advice.
What is a Court of Protection Deputy?
The Court of Protection safeguards the rights of vulnerable people (those who lack mental capacity). The Court of Protection has the authority to appoint a Deputy to manage someone else’s affairs or their welfare when the individual no longer has mental capacity in accordance with the provisions of the Mental Capacity Act 2005.
There are two types of Deputy:
Property and Financial Affairs;
Health and Welfare
Both types of Deputy have a huge responsibility. As such, this person must be appointed, and can only act under an Order from the Court of Protection.
However, before a Deputy can make decisions on someone’s behalf, the individual should be given all the help they need to make decisions on their own (if possible). Someone cannot be treated as lacking capacity just because he or she wants to make an unwise choice.
Only once you have established someone cannot make decisions for themselves can you apply to the Court of Protection to make decisions on their behalf. If approved by the Court of Protection, you are responsible for making decisions in their best interests.
In determining what is in a person’s best interests, you must have regard to the factors set out in Section 4 of the Mental Capacity Act 2005.
In the event that a single important decision is needed, then an application can also be made to the Court of Protection for a one-off order.
What is the role of the Court of Protection Deputy?
You can apply to be one type, or both types, of Deputy. If appointed, you will be responsible for either helping someone make decisions – or deciding on their behalf.
Health and Welfare decisions could revolve around living arrangements, contact and access, as well as medical treatment choices.
Property and Affairs Deputies will be responsible for deciding how best to manage someone’s finances. This includes making sure they are receiving all the funding and benefits they are entitled to.
To assist you, you will receive a Court Order which clarifies what you can and can’t do. There is also a Code of Practice which contains helpful information in relation to the Mental Capacity Act 2005 and your role as a Deputy.
The Mental Capacity Act 2005 is designed to “protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process.”
Every decision you make will be different. Someone’s mental capacity won’t be the same at all times, and could affect your decisions differently depending on what area of their life it influences.
In their guidance to Court of Protection Deputies, gov.uk recommends the following when you are deciding.
Make sure it is in the other person’s best interests
Consider what they’ve done in the past
Apply a high standard of care - this might mean involving other people, for example getting advice from relatives and professionals like doctors
Do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language
Add the decisions to your annual report
You must not:
Restrain the person, unless it is to stop them coming to harm
Stop life-sustaining medical treatment
Take advantage of the person’s situation, for example abuse them or profit from a decision you have taken on their behalf
Make a will for the person, or change their existing will
Make gifts unless the Court order says you can
Hold any money or property in your own name on the person’s behalf
Making decisions on someone’s behalf can be daunting at first. It is best to take a bit of time to consider what is important to that person. Remember, you are deciding for them – it might not be what you would choose for yourself. It can help to look at things they’ve done in the past, speak to their friends and family, or consult anyone else involved in their care. You don’t have to do it alone.
Additionally, you should notice how the person responds to the decisions you make. Behaviours and reactions can tell you things which perhaps can’t be expressed in words.
How to apply to be a Court of Protection Deputy
First things first, you will have to meet the requirements. That means you should be aged 18 or over. Generally, Deputies are close relatives or friends, with the previous knowledge necessary to make decisions the individual would be happy with.
To be a Property and Affairs Deputy, you will have to demonstrate skills needed to make financial decisions.
Once you have checked you meet the requirements, there are lots of forms to fill in. The aim is to provide the Court of Protection with sufficient detail to decide whether to appoint you as Deputy or not. These forms, all of which can be downloaded from gov.uk, are:
An application form
An assessment of capacity form
A Deputy’s declaration
An information form (there are two, depending on what type of Deputy you are applying for)
The assessment of capacity form is used to confirm the person in question cannot make decisions for themselves. It is usual for a medical practitioner to complete this form.
We recommend that you spend time filling out the forms to the best of your knowledge, as the Court can send them back.
After you have applied, expect a stamped copy of your application from the Court. This means it has been ‘issued’, and it is being considered. At this point, make sure you notify the person you are applying to be a Deputy for, as well as anyone else who has an interest in their life – relatives, for example. The Court will provide you with guidance regarding notification requirements in their communications with you.
How much does it cost to be a Deputy?
When you apply to be a Deputy, you must pay a £400 application fee. You will pay this fee twice if you want to be both types of Deputy.
As an additional cost, you might have to pay £500. This only happens if the Court of Protection decides your case needs a hearing. They will let you know if this applies to you.
You will also have to pay a supervision fee every year. The amount you pay depends on what level of supervision you have as a Deputy. For general supervision, the annual fee is £320. For minimal supervision, it is only £35 a year. This is typically what Property and Affairs Deputies pay, if they are managing less than £21,000. The fee is payable from the person’s funds (and not your own).
The Office of the Public Guardian is the supervisory body for Deputies and is responsible for allocating the level of supervision you need. There are four levels:
Close supervision and regular contact between the Deputy and the Office of the Public Guardian
Intermediate level of supervision for Deputies dealing with Property and Affairs. This typically concerns monitoring new Deputies or short-term interventions
Lighter level of supervision consisting of sample monitoring of cases.
Periodic supervision for Property and Affairs Deputies managing limited assets
The Office of the Public Guardian will contact you to let you know how – and when – you should be paying different fees. Don’t let the fees put you off. You can apply for a reduction, or even an exemption. You will be able to do so if the person you want to be a Deputy is in receipt of certain benefits, or earns below £12,000.
What’s more, being a Deputy should not leave you out of pocket. As such, you can claim for some expenses including postage costs, car parking and general travel expenses. You can claim when you have incurred the costs as part of your Deputy duties. You cannot claim if you are travelling for a general family visit, though. Only Court-appointed Deputies, not other friends and family you may consult, can claim.
What to include in your annual report
One of your responsibilities as a Deputy is to complete an annual report. It goes to the Office of Public Guardian and should explain the decisions you have made. They will reach out to you and let you know when it is time to complete the report. You can do it online, or send the report in the post.
To ensure you have been acting in the person’s best interests, your report needs to include the reasons for your decisions, who assisted you in making these decisions and why you think they were right for the person you are Deputy for.
When would someone need a Court of Protection Deputy?
If someone has not made a Lasting Power of Attorney (see below), and their ability to manage their financial affairs or health worsens, a willing Deputy will be appointed. This is common for people with dementia, for instance.
Property and Affairs Deputies are the more common type. The individual will need a Deputy to collect their income and benefits, pay any care home charges, deal with their property etc. A Deputy could choose to sell assets if needed so long as the Court Order provides you with sufficient authority to do so.
As another example, someone who has an accident and suffers a head injury might need an appointed Deputy to arrange a Court settlement to pay for their on-going medical care.
Who can be a Court of Protection Deputy?
Generally, the Court of Protection prefer a close family member to act as a Deputy. This happens in most cases, as they are more likely to have the person's best interest at heart. Paid care workers should not be Deputies, due to a possible conflict of interest.
However, anybody else can be considered by the Court of Protection. Deputies could be a relative, friend, neighbour or a professional representative – solicitors, accountants, and local authority officers could be appointed, although this is relatively rare. The Court might decide to appoint someone from their panel of Professional Deputies for Property and Affairs. Typically, they are solicitors who specialise in this area of law.
For major medical treatment decisions, the NHS (or other organisation responsible for the person’s care) can make an application. Social staff can inform their relevant local authority to make an application to the Court of Protection too.
Deputies, whether they are a close relative or experienced professional, should all carry out their duties responsibly. Primarily this means acting with due care and skill, not taking advantage of their situation and complying with instructions from the Court of Protection.
At Gillhams Solicitors, we strongly believe mental incapacity should never compromise a person’s right to a safe and secure future. If you would like additional support, we are able to apply and represent clients at the Court of Protection, while working towards getting the right financial, property and health and welfare provisions in place for you or a loved one.
As a Firm we currently have 3 Court of Protection Panel Deputies and act as Professional Deputies for a large number of clients. Some of the actions we carry out in relation to our clients are as follows:-
Submitting applications to the Court of Protection either for a professional or relative to be appointed as Deputy;
Preparing annual accounts to the Office of the Public Guardian;
Preparing Income Tax Returns;
Employing carers and paying care fees;
Seeking local authority funding;
Investigating allegations of financial abuse;
Ensuring an individual is receiving the correct benefits;
Selling an individual’s property when they need to go into a care home.
We are also able to assist if there is a dispute as to who should act as Deputy or if there are concerns about potential financial abuse of an individual.
Lasting Power of Attorney
An Attorney is similar to a Deputy. It is another legal method of deciding for a person lacking the capacity to do so themselves. However, there is a key difference. Lasting Powers of Attorney are made before the person in questions loses capacity. They will choose to appoint someone to make choices for them in the event that they lose capacity although the person making the Lasting Power of Attorney can also provide authority for the Attorney to make decisions immediately on registration of the Lasting Power of Attorney.
An application to be a Court of Protection Deputy, on the other hand, is made after the person loses capacity.
Our Court of Protection solicitors will work with you to ensure that best interests are always protected and that you are in full compliance with all the statutory requirements.
Should you wish to discuss this further then please feel free to contact us.