A deputy is a person appointed by the Court of Protection to make decisions for someone who lacks capacity to make decisions on their own.
Who can be a Deputy?
A deputy is usually a family member or a close friend of the person who lacks capacity. If no such person is willing or able to act, a professional person like a solicitor or accountant can be appointed to act as deputy. A deputy must be over the age of 18.
What is the Court of Protection?
The Court of Protection is a court of law based in London. It has a specific purpose – to help look after those individuals who lack capacity to make decisions on their own.
Who decides that someone lacks capacity?
Ultimately it is the Court which decides whether someone lacks capacity. Initially, however, it will usually be a family member or a visiting solicitor who suspects that the client does not have capacity. This is the stage when a professional medical opinion is sought. The medical evidence is normally the most persuasive element when the Court makes its decision.
What are a Deputy’s roles and responsibilities?
A deputy can make only those decisions that have been approved by the court, must apply a high standard of care when making decisions, and must always act in the best interests of the person who lacks capacity.
How do you become a Deputy?
You must apply to the Court on the set forms. If satisfied, the Court will make an Order appointing you as Deputy. This Order will state what decisions you can make on behalf of the person who lacks capacity.
When not to make decisions
Deputies may not make decisions :
- If the person has capacity to make that particular decision themselves;
- If that decision will lead to the person being physically restrained, unless it prevents them coming to harm;
- About stopping life-sustaining treatment;
- When it goes against a decision made by an Attorney acting under a Lasting Power of Attorney.
What you cannot do as a Deputy
Regardless of a person’s capacity you cannot make certain decisions. These include:
- Making a Will or an addition to any existing Will on behalf of the person;
- Make unauthorised gifts out of that person’s assets.
Reporting to the Court
You will be required to report to the Court, normally once a year, about all decisions you have made for the person who lacks capacity. This helps the Court understand the decisions you have made as a Deputy. There is a Deputy Supervision fee payable to the Court outlined below.
Types of Deputyship
There are two types of Deputy the Court can appoint:
- Financial Decisions – the deputy can make decisions about the person’s property and financial affairs. This can if authorised include the sale and purchase and disposal of property.
- Health and Care – the deputy can make decisions about the personal health and welfare of the person who lacks capacity, including treatment options. The deputy cannot, however, make decisions about life-sustaining treatments.
Certain decisions, such as selling a house, will need the express permission of the Court.
Termination of Deputyships
There are a number of ways deputyship can come to an end. This can be when the person lacking capacity either dies or recovers their capacity or alternatively, the Order from the Court may expire if it is limited in time. The Court also has the power to terminate an Order itself, or on application from the Deputy if they wish to retire or resign.
The applicant completes various forms about the person who lacks capacity and their family and finances. These are sent to the Court with the medical evidence in the prescribed form and a cheque for the court fee. The Court then assesses the Application, and if approved, an Order will be made appointing a Deputy.
The application process can be quite long. Once the application has gone to the Court it will usually take between 8 and 12 weeks for the Court to appoint a Deputy. There is also work that needs to be done before the application is submitted to the Court which adds to the process time.
Fees and Costs
There are various fees and costs involved when making an application for deputyship. The main fees are:
Court application fee £400
Appointment of Deputy fee £125
Doctor’s fee Between £50 and £300.
There are also ongoing fees each year:
Supervision Fee £0 to £800
Security Bond £200 to £800 plus
A security bond covers actions and decisions made by the Deputy. The Court sets the level of the bond and the more assets there are to look after, the greater the cost of the bond.
There will also be solicitor’s fees. In very simple cases, the solicitor may opt for “fixed costs” set by the Court (£950 plus VAT for 2017). But more often, the legal fees are assessed by the Senior Court Costing Office.
All fees and costs for Financial Decisions applications are usually ordered to come out of the assets of the person who lacks capacity. Fees can often be postponed until the Deputy has access to bank accounts to pay the fees. A Deputy who advances fees from his own pocket will be able to recover this from the funds of the person who lacks capacity.
For a full breakdown of the cost and your potential eligibility for a reduction in court fees, please call us on the number below to discuss your particular circumstances.