04/03/2024
The Court of Protection is a specialist court that makes decisions on financial or welfare matters or appoints other people (‘Deputies’) to make decisions for people who lack the mental capacity to do so themselves.
It plays a crucial role in supporting vulnerable people and their loved ones.
If someone you know is unable to look after their affairs, you may need to apply to be a Deputy through the Court of Protection so that you can safeguard their welfare and finances.
In this blog, our specialist Court of Protection solicitors answer some frequently asked questions about Deputyships and consider what the role involves.
What is the Court of Protection?
The Court of Protection is a court based in London that deals with the legal issues affecting people who do not have the mental capacity to make decisions for themselves.
The Court of Protection can:
- Decide whether a person has the capacity to make a particular decision for themselves.
- Make declarations, decisions, or orders on financial or welfare matters affecting people who can’t make these decisions.
- Appoint a deputy to make ongoing decisions for people who lack the capacity to make those decisions.
Within the Court of Protection is the Office of the Public Guardian (OPG), which is responsible for supervising Deputies.
What is a Deputy?
Deputies are the people who are appointed by the court to make certain decisions on another person’s behalf if they lack the mental capacity to make those decisions for themselves and do not have a valid Lasting Power of Attorney (LPA) in place that stipulates who should make those decisions for them.
Mental capacity can be lost on a short-term basis, such as if you are unconscious or are suffering from mental health problems, or permanently, for example, through an accident or if you have Alzheimer’s or dementia.
What sort of decisions can Deputies make?
There are two different types of Deputyship:
- Property and affairs. This is the most common type of Deputyship and involves making decisions about a person’s property and financial affairs, including dealing with any income, paying bills, managing or selling property, making gifts on the other person’s behalf, and choosing how to invest the person’s savings.
- Personal welfare. A personal welfare Deputyship is used to make decisions about a person’s care and medical treatment, for example, whether the person moves into residential care or receives life-sustaining treatment. Appointing a personal welfare Deputy is rare, as these decisions are usually entrusted to the relevant healthcare professionals.
What are the responsibilities of a Deputy?
The exact scope of a Deputy’s powers is determined by the needs of the person who lacks capacity and is set out in the Deputy order issued by the court.
However, there are certain standards that all Deputies must meet. These include ensuring any decision they take:
- Is in the other person’s best interests.
- Reflects what they’ve done in the past.
- Applies a high standard of care.
Deputies must also do everything possible to help the other person understand their decisions. A Deputy must keep a record explaining what decisions they have made and accounting for the money they have spent, which is then submitted annually to the OPG.
Who can be a Deputy?
Anyone over the age of 18 can apply to become a Deputy. It is usually a friend or relative of the vulnerable person, although you can also get professional Deputies, such as solicitors or a trust corporation.
Two or more people can be appointed as joint Deputies to act on someone’s behalf.
Russell & Russell can act as a professional Deputy for people who are unable to manage their own property and financial affairs.
Are Deputies paid?
Deputies are not usually paid, although they can claim certain reasonable expenses incurred while undertaking the role. These can include:
- Travel expenses.
- Car parking tickets.
- Postage costs.
Only professional Deputies can charge for their time.
How do you become a Deputy?
To become a Deputy, you must complete and submit various forms together with a professional assessment of mental capacity.
You must also tell the person you are applying to become a Deputy for and inform at least three people connected to that person, such as the person’s relatives, social worker or doctor.
The process for applying to be a Court of Protection Deputy is complex, and it is easy to make mistakes. For guidance on Court of Protection applications from our experienced Deputyship solicitors, please call Russell & Russell on 0800 103 2600 or make an online enquiry.
How long does a Deputyship Order last?
A Deputyship Order lasts for as long as the individual concerned lacks capacity and needs someone to make decisions on their behalf.
However, it is possible to change a Deputy. If you are concerned that a Deputy is not making decisions in the vulnerable person’s best interests, you can apply to the Court of Protection for a Deputy to be discharged and replaced.
Court of Protection Solicitors
At Russell & Russell Solicitors, we have an experienced team which specialises in all matters relating to the Court of Protection.
Regardless of the complexity of the situation, or if your concerns are regarding your or someone else’s ability to manage the affairs for you or a loved one, we will provide you with the advice and expertise you need.
We can also act as a professional Deputy when required.
If you would like to speak to us regarding any concerns, please call 0800 103 2600, email info@russellrussell.co.uk, or make an online enquiry.
To find out more about our Court of Protection and Deputyship services, click here.
Please note that this article is meant as general guidance and not intended as legal or professional advice. Updates to the law may have changed since this article was published.
Please note that this article is meant as general guidance and not intended as legal or professional advice. Updates to the law may have changed since this article was published.