If an individual has not made a Lasting Power of Attorney, families and loved ones often have to apply to the Court of Protection (COP) to be appointed to act as a Deputy for the individual when they lack the mental capacity to make decisions for themselves. This could be managing their finances or decisions about their health and welfare.
Sometimes, a sudden and drastic deterioration in a loved-one’s health can mean that care is needed and the family must access the bank accounts, or even sell the family home, to pay for it. In the absence of having a Lasting Power of Attorney in place, the individual’s loved ones have no authority to deal with any of the finances. Their only option is to apply to the Court of Protection to be appointed as a Deputy. If you need to make a Deputyship application, Paladin Advocates & Attorneys can help you with the process of making the application and applying to the Court. We can also provide advice and representation if your application has been contested by another party.
The Deputyship application is a long and complex process, with the Court of Protection typically taking a number of months to complete applications. Usually the Deputy would be a relative, but a close friend or an independent person such as a bank manager, accountant or a solicitor could also be appointed. In some cases, where there is nobody suitable to act as deputy, the Court may appoint an organisation, for example a Local Authority or the Office of the Public Guardian to act as Deputy.
Responsibilities of Court Appointed Deputies
Deputies’ responsibilities depend on the needs of the person on whose behalf they are appointed to act, but similar to Lasting Powers of Attorney, most frequently the powers granted to the Deputy relate to:
- The person’s property and financial affairs
- The person’s health and welfare, which could include decisions about medical treatment or social care or where they live.
Similar to Lasting Powers of Attorney, different people can be appointed to take responsibility for each area.
Responsibilities under the Mental Capacity Act
Court appointed Deputies are required to adhere to the five principles of the Mental Capacity Act 2005. Essentially this means that they have to take steps to help the person lacking capacity to make their own decisions, where it is practicable. It also means that where a Deputy makes a decision on behalf of someone lacking capacity, they must do so in that person’s best interests.
Monitoring of Court Appointed Deputies
The Office of the Public Guardian monitors and audits the performance of Deputies. Each Deputy has to complete an annual report using the Deputy Declaration Form.
The Deputy Declaration Form asks for details of decisions that have been made during the past 12 months, and the steps that have been taken to involve the person lacking capacity in the decision-making process. Property and Affairs Deputies also have to provide detailed information about financial transactions to include invoices and receipts.
If you are appointed as a Deputy, you should therefore keep detailed records, including your own notes and copies of any documents relating to decisions you have made, including bank statements, receipts and invoices, and any letters or reports.