Has your family member or friend lost mental capacity?
There are many reasons why a person in your life may no longer be able to manage their own financial affairs or make informed decisions about their personal welfare, known as loss of mental capacity. Loss of capacity can be caused by various different things including illnesses, such as Alzheimer’s and various forms of dementia.
In order to take control of your loved one’s affairs, you will need to make an application to the Court of Protection to be appointed as their Deputy. Applications tend to be made to either appoint a family member/close family friend or a professional, depending on various different factors (e.g. family disputes). A Deputy is responsible for the vulnerable individuals’ decisions about issues, primarily related to financial affairs, e.g. selling their property, but can sometimes relate to matters of personal welfare. Your authority to act on these issues will depend on whether you have been named as property and financial affairs Deputy or Personal Welfare Deputy.
Our trusted partners Premier Solicitors have helped hundreds of families and can guide you through this complex process. They have a specialist team that are dedicated to handling Court of Protection work. The team includes one of only 68 panel deputies in the country approved by the Court of Protection. They charge fees in line with the Court of Protection solicitors’ fixed costs, and are upfront about the cost of service, not undertaking any work without your consent.
FAQ
Who are Premier Solicitors?
Premier Solicitors was founded in 2006, operating nationwide with Head Offices in Bedford. Premier Solicitors is a leading law firm offering competitive fixed fees, dedicated to providing a professional and affordable legal service on a range of legal services. We are committed to providing appropriate solutions and excellent customer service. The Firm is Lexcel accredited, a Law Society nationally recognised quality mark for law firms.
What does the Court of Protection do?
The Court of Protection makes decisions on matters dealing with financial affairs and/or personal welfare on behalf of an individual whom has been deemed as lacking mental capacity and subsequently cannot make that decision themselves.
Court of Protection Deputyship – who needs one?
When a friend or loved one has lost their ability to manage their own financial affairs (often referred to as the loss of mental capacity), the Court of Protection appoints someone to manage this, on the vulnerable persons behalf. This person is known as a Deputy and is given the authority to manage the day to day financial affairs of the person who has lost the mental capacity.
Capacity is both decision and time specific and so, it is important to remember that just because a person can decide what they want to eat, for example, does not mean that they have sufficient capacity to deal with more complex issues, such as managing their financial affairs.
Appointee
If the incapacitated person does not have savings/property in excess of £5,000 and their only income is pension/state benefits, then a Deputyship Order will not be proportionate to their needs.
In cases such as these, it would be more appropriate to liaise with the Department of Work and Pensions (DWP) and undertake their process of becoming a named appointee for the incapacitated person.
Applying to become an Appointee means you are applying for the right to deal with the benefits of someone who can’t manage their own affairs because they are mentally incapable or severely disabled.
Who can apply to be a deputy?
Anyone over the age of 18 can apply to act as a Deputy. Usually a family member or close friend will be the most suitable person to apply, but it is the Court of Protection who has the final say in who can act.
In some cases, the Court of Protection will determine that a family member/friend is not best placed to be named Deputy. In these circumstances, the Court of Protection will appoint one of their 68 approved panel Deputies, depending on whom is best placed.
You may choose to appoint a solicitor to step in as Deputy and act in their professional capacity. Not only does Premier Solicitors have a dedicated, specialised Court of Protection team, we are headed by one of only 68 panel Deputies who is willing to be appointed as Deputy, in his professional capacity.
The Deputy is responsible for taking on the duties (such as paying bills) of another person and so, it is important that family/friends really consider this responsibility before proceeding with the application. In order to ease such burden, we always suggest that at least two persons should apply to become the Deputy.
Once appointed as Deputy, you will receive a Deputyship Order which dictates various things you can and cannot do without further authority to the Court of Protection. This Order must be complied with and you should always act in the protected party’s best interests.
The Deputy will have to submit annual accounts to the Office of the Public Guardian, to confirm how the vulnerable person’s estate has been managed.
Are there different types of Deputyship?
Yes, there are 2 types of Deputyship Orders that the Court of Protection can make:
Property and Financial Affairs – These are the most common of Deputyship applications and orders. As discussed above, this Order would allow you to manage the protected party’s property and financial affairs, with various different dictations in respect of authority to deal with specific items (e.g. selling or purchasing property)
Health and Welfare – Health and Welfare Orders tend to be required for dealing with specific issues (e.g. changing the vulnerable persons care accommodation where social services disagree) however, the Court of Protection can be very reluctant on issuing such Orders. You can request a general health and welfare Deputyship Order however, it is unlikely that such application will be successful.
There are various other applications that can be made to the Court of Protection. An application can be made to the Court of Protection to put a Will in place for an individual who does not have testamentary capacity. This is known as a Statutory Will application. A similar application can be made to make a Statutory Gift during the protected party’s lifetime.
Who are the OPG?
The OPG (Office of the Public Guardian) are the supervising body for Deputies and they subsequently provide support to both lay and professional Deputies. The OPG also safeguard vulnerable individuals from different risks (e.g. financial abuse).
How much does it cost to apply to become a Deputy?
Fees for a property and financial affairs Deputyship application will vary depending on the complexity of the matter, but we can offer a set fixed fee once we have full details.
We are upfront with you about the cost of the service and will not undertake any work without your consent.
There are some disbursements involved in making an application to the Court of Protection. The primary disbursement if the Court fee of £421 however, confirmation of all disbursements will be set out prior to commencing the application process.
We will not charge any upfront fees. Our costs will be billed at the end of the application process and the Court allows payment to be made out of the funds of the incapacitated person as the Order is made on their behalf.