Court of Protection Deputyship Orders – a brief guide

Monday 19th December 2016

When an individual loses mental capacity and cannot make a decision for themselves it may be necessary for another person to make a decision for them. This can easily be done if the person who has lost mental capacity has already made a Lasting Power of Attorney. In these cases the Attorney will become responsible for managing the affairs of the person who has appointed them (“the donor”) and may access the donor’s accounts as if they were their own. Unfortunately however, more and more people are losing mental capacity without prior planning in place.

Under these circumstances, if an individual wishes to make decisions on behalf of another who has lost mental capacity they must apply to the Court of Protection for a Deputyship Order. They will then be known as a Deputy. There are two types of Deputyship Orders; one that governs property and financial affairs and one that governs personal welfare. Personal welfare Orders are much less common than financial Orders and each one needs to be applied for independently of the other.

Obtaining a Deputyship Order can be a lengthy and costly process. The process usually takes around 4-6 months to complete and during which time multiple forms must be completed. The Court of Protection prefer to appoint family members to be the Deputy, although will consider other applicants in appropriate circumstances.

The role of a Deputy is similar to the role of an Attorney apart from Deputies have a duty to submit annual reports to the Court of Protection and keep full, comprehensive accounts for all income and expenditure throughout the year. This is because the Deputy is appointed by the Court and not by the donor themselves.

Like an Attorney, a Deputy has a duty to safeguard the assets and ensure all decisions are made in the best interests of the individual. The Court of Protection issues useful guidance on this for Deputies. If the Deputy wishes to make decisions such as buying or selling a property or making a gift out of the individual’s assets this must be applied for separately and will require a specific Order. A fee of £400 is payable every time an application is made to the Court.

In view of the additional time and cost involved in an application to Court, it is advisable to complete Lasting Powers of Attorney where possible in case mental capacity is lost later in life. As soon as an individual loses mental capacity they will no longer be able to make a Lasting Power of Attorney and a Deputyship Order will have to be applied for.

If you would like to discuss making Lasting Powers of Attorney or a Court of Protection application in detail, please feel free to get in touch with a member of our private client team.