Wills and Lifetime Financial Planning
When an individual loses mental capacity and they haven’t made Lasting Powers of Attorney (LPAs) or an Enduring Power of Attorney (EPA), a Deputyship application will have to be submitted to the Court of Protection to appoint a Deputy to make decisions on their behalf.
A Deputy is an individual appointed by the Court of Protection to handle the affairs of someone who lacks the mental capacity to do make their own decisions. Typically, the Deputy is a friend or family member, but in certain situations, it could be a professional such as a solicitor or accountant. The key difference between a Deputy and an Attorney is that Deputies are appointed by the Court whereas an Attorney is chosen by you.
The process of applying for Deputyship is complex, costly, and time-consuming, often taking many months. Whilst the application is being dealt with by the court, no one has the legal authority to make decisions on your behalf. Therefore, it is always advisable to make LPAs in advance, rather than relying on the Deputyship process.
There are two types of deputyship applications:
This type of Deputy can manage bank accounts, pay care fees or household bills, and handle property transactions such as buying or selling a property for the individual to reside in.
A Personal Welfare Deputy can make decisions regarding the individual's place of residence, the care they receive, and certain medical treatment choices.
It is an order from the court appointing a person or multiple people to make decisions on your behalf when you have lost capacity.
Generally, a family member or friend of a person who lacks mental capacity can apply to become a Deputy, however, there is no guarantee that they will be granted the Deputyship. Sometimes it can be more appropriate for an independent person, such as a solicitor, to be appointed.
Yes, if there are concerns as to whether a Deputy is acting in your best interests, then an application can be made to the Court of Protection to remove them. A current Deputy can also apply to the Court of Protection to be discharged if they don’t want to continue acting.
The Court of Protection is a court that can make decisions for particularly vulnerable people who do not have mental capacity to make their own decisions, about their health and welfare or about their property and finances.
The process can take a number of months dependent on the caseload of the court at the time you make your application. It is not uncommon for this to take between 4 - 6 months.
The Mental Capacity Act 2005 defines a lack of mental capacity as an inability to make a decision due to an impairment or disturbance of the functioning of the brain. It can be a complex assessment to decide if a person lacks capacity because that assessment will be time and decision-specific. We would recommend that if you have doubts as to a persons capacity to make their own decisions you consult one of our lawyers. Our advisers will consider your particular situation and may then instruct a suitably qualified professional to obtain a formal capacity assessment. The Mental Capacity Act Code of Practice requires the following questions to be considered in assessing a person’s capacity to make a decision:
If you would like help with a Court of Protection application then please don’t hesitate to reach out to our team of legal experts at John Hodge Solicitors based at our Weston-super-Mare, Clevedon, Yatton, Bridgwater, Bristol and Wedmore offices.
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