Court Appointed Deputy
A Court Appointed Deputy is a person appointed by the Court of Protection to act on someone’s behalf if they have lost capacity. This might be because they have had a serious brain injury or illness, they have dementia, or they have severe learning disabilities and need someone to help with their property and affairs or welfare. An application will need to made to the Court of Protection for them to decide who should act as deputy, should such need arise.
It is useful here to identify that a Lasting Power of Attorney (LPA) can only be made if the donor has mental capacity to make decisions for themselves and can manage their affairs. The LPA would only be used if, for instance, the person makes decisions but may ask the attorney to carry out that decision ie signing, giving instructions to the bank etc, or if they lose capacity. The advantage of an LPA is that you can choose who would act on your behalf while you have mental capacity. However, with a Court appointed deputy the Court will decide if the person making the application is suitable to act as your deputy, although they give preference to nearest relatives. A deputyship may be seen as a last resort when you are unable to make decisions for yourself and nobody has the legal authority to do it for you. In the ideal situation you would make an LPA in favour of the person that you choose who would need to be over 18 years old and the application process for an LPA is simpler and cheaper than a deputyship. However, where a person lacks capacity and has family members who would be willing to take over as deputy, an application can be made either by themselves through the Court of Protection paperwork or via a solicitor for the Court to decide whether they are the right person to take over the affairs. If so, the Court will issue a Court Order and give several copies so that these can be taken into financial institutions so that the person acting as deputy can prove their appointment from the Court.
Typically, there are two types of deputies. There is a property and financial affairs deputy and there is a personal welfare deputy order that could be made. These are two separate orders made by the Court and the property and financial affairs deputy is a very much more common order to be granted than a personal welfare deputy. Financial institutions are very much more willing to engage in conversations with a person if there is a Court Order. However, it is likely that the Court might perceive that a welfare decision would be made in the best interest of the person who lacks capacity through medical teams and social workers rather than a more prescriptive Court Order defining what the person can and cannot do.
In summary, LPAs are cheaper and easier to put into place while you have capacity, and most importantly, you chose who you wish to act for you. If that is no longer a possibility, a deputyship works well and can offer essential help in safeguarding the financial situation of the person who has lost capacity.
Roswyn Bradshaw is a Caseworker Manager in the private client team at Barker Gotelee Solicitors in Suffolk.
For more information on our range of legal services including elderly client care, please call the team on 01473 611211 or email [email protected]
