The majority of people these days have heard of Lasting Powers of Attorney, thanks, in part, to Martin Lewis and his encouragement of people to get their affairs in order whilst they still can. But what happens if you don’t get your affairs in order and you later lose mental capacity?
A deputyship order is often compared with a Lasting Power of Attorney, but there are important differences:
- A Lasting Power of Attorney (LPA) is made by an individual while they still have mental capacity
- A Deputyship Order is obtained after capacity has already been lost.
What Is a Deputyship Order?
A Deputyship Order is a legal order which is made by the Court of Protection, a specialist court which deals with making decisions or appointing deputies for people who lack mental capacity to make decisions for themselves.
The Deputyship Order gives named people (there can be more than one deputy appointed) the authority to make decisions on behalf of the person lacking capacity. This lack of capacity could be as a result of dementia, a stroke, a brain injury, a severe learning disability or any other illness which affects a person’s ability to make decisions.
Why Is a Deputyship Order Needed?
If a person lacks capacity and has not previously made Lasting Powers of Attorney appointing attorneys to act for them, family members do not automatically have authority to deal with a person’s finances or make decisions about their healthcare, medical and welfare needs. A Deputyship Order provides that authority and allows the appointed deputies to make decisions for a person lacking capacity to do so themselves.
Types of Deputyship Orders
There are two main types of deputyship:
- Property and Financial Affairs Deputyship
This is the most common form of deputyship. A property and financial affairs deputy may be authorised to:
- Manage bank and building society accounts
- Pay household bills and care fees
- Collect pensions and benefits
- Deal with investments
- Buy, sell, or manage property
- Manage the individual’s overall financial affairs
- Personal Welfare Deputyship
A personal welfare deputyship may be authorised to make decisions about:
- Medical treatment
- Care arrangements
- Living arrangements
- Day-to-day welfare matters
Who Can Be Appointed as a Deputy?
A deputy must be 18 years or older and are often spouses or partners, adult children, other relatives or close friends. Where there is no suitable family member or friend who can be appointed, the Court of Protection may appoint a professional deputy, such as a solicitor or a panel deputy.
If more than one deputy is appointed, they may act jointly, which means that all deputies must make decisions together or they may act jointly and severally, which means they can act either together or independently.
Deputies are subject to strict legal obligations under the Mental Capacity Act 2005 (which contains the MCA Code of Practice) and deputies appointed in respect of Property and Financial affairs are required to submit annual reports regarding how they are managing a person’s affairs to the Office of the Public Guardian (OPG) and are supervised by the OPG.
The Process:
The deputyship process can take between 9-12 months and involves:
- Obtaining medical evidence that the person the application is to be made about does lack mental capacity
- Completing detailed COP application forms and paying the court fee
- Notifying relevant people about the application
- Arranging security bonds, in respect of financial deputies
- Receiving the order from the Court
At Carr & Co, we can guide you through every stage of the deputyship process. Please contact our office on either 01670 515182 or 01670 351251 for further information and assistance.