Deputyship and Court of Protection
When a person lacks the mental capacity to make decisions about their own affairs, a Deputy can be appointed by the Court of Protection to make such decisions on their behalf if they have not already made a Lasting Power of Attorney (originally Enduring Power of Attorney). This may be a friend, a relative or a professional person.
At Onions & Davies, we have many years’ experience in guiding clients through the sensitive process of applying to the Court of Protection. If you have concerns about a family member or loved one who you believe is unable to make decisions for themselves, our skilled Court of Protection lawyers can help you through the next steps.
What is the Court of Protection?
The Court of Protection is a specialist court in England and Wales dedicated to safeguarding the rights and welfare of individuals who lack the mental capacity to make decisions for themselves. Specialising in resolving complex disputes and appointing Deputies for managing financial, property, health, and personal welfare matters, the Court of Protection acts as a guardian, ensuring that the best interests of vulnerable individuals are upheld.
Getting advice early on can help put your mind at ease. If you are looking for Court of Protection and Deputyship advice, please contact our Court of Protection team for more details at sols@onionsanddavies.co.uk
Making an Application to the Court
For someone to be appointed as a Deputy, they must submit a number of forms to the Court of Protection. The type of forms required will depend on what the Court is being asked to decide. They will generally ask for information in respect of both the individual who lacks mental capacity and the applicant, in particular regarding their personal circumstances and finances.
A number of people interested in the welfare of the person who lacks mental capacity will be notified of the application and they will be able to give the Court their views on the matter if they wish to do so.
The Court will then assess the applicant’s suitability to act as Deputy and, if the application is successful, they will issue an Order setting out the extent of the Deputy’s powers.
How We Can Help with the Application Process
The Court of Protection application process can be a complex and lengthy process and we understand how daunting this can be. At Onions & Davies, our Court of Protection lawyers have many years of experience completing and submitting these forms. We can guide you through the process providing clear, straightforward advice if you are unsure about any parts of the forms.
Court of Protection Solicitors Shropshire
Onions & Davies is an established, high street law firm in Market Drayton, providing specialist, professional legal advice to people in Shropshire and beyond. Our highly experienced Court of Protection team specialises in:
- Appointing Deputies and Court of Protection applications
- Support for Deputies or attorneys
- Professional Deputyship services
- Court of Protection disputes
We are on hand to provide advice and support on all Court of Protection matters, but as a guide, here is some further information on the powers given to a Deputy and their roles and responsibilities.
Powers Given to Deputies
The Court will set out the extent of a Deputy’s powers, which can apply to any area in which the person could have acted or made decisions if they had had the capacity to do so themselves.
This may be in respect of financial matters, personal welfare issues, consent to medical treatment and social care interventions. The powers given will depend on the needs of the person whom the Deputy has been appointed to assist.
Decisions which Deputies commonly have to make can involve; buying and selling the person’s property, operating bank accounts and investing savings, paying for private medical treatment and care home fees, dealing with tax affairs, deciding where a person lives and whom they live with, day- to-day decisions such as what the person eats, wears, etc. and can also include dealing with the person’s medical records and treatment.
Roles and Responsibilities
Deputies have a responsibility and a duty of care to act in the best interests of the person for whom they are making decisions. They must pay regard to the principles of the Mental Capacity Act and the related Code of Practice.
Before making a decision, it is important for Deputies to consider whether the person they are assisting could make that decision for themselves with some support or under certain circumstances.
They should involve the person who lacks capacity as much as possible in any act or decision and consider their values, views, beliefs, wishes and any feelings that they may have expressed in the past. If possible, the Deputy should consult with others such as the family and friends about their views on the person’s best interests.
Deputies are not expected to be experts in assessing capacity. However, when making a decision on behalf of someone else, they must reasonably believe that the person lacks the capacity required to make that decision themselves or to give consent at the time it was needed.
Deputies are permitted to employ professionals such as solicitors, accountants and regulated financial advisors to assist them in carrying out their role as a Deputy. They are not permitted, however, to delegate their responsibilities to another person.
Supervision
Deputies’ actions are supervised by the Office of the Public Guardian. Individual assessments will be made of each case to determine the appropriate level of supervision and cases are reviewed regularly.
The level of supervision will depend largely on the complexity and value of a person’s estate and the relationship between the Deputy and the person for whom they are acting.
The Office of the Public Guardian will advise Deputies individually of what is required from them. This may include providing reports covering all decisions made on behalf of the person lacking capacity, along with receipts for money spent, bank statements and correspondence, letters and reports from health agencies or social services.
It is also possible that a Court of Protection Visitor may visit both the Deputy and the person whose affairs they are managing, in order to ensure that the Deputyship is working for both parties and that the decisions being made are in the best interests of that person. The Office of the Public Guardian may also contact others with an interest in the person’s welfare.
Fees
There is an initial fee to be paid to the Court when making the application and additional annual supervision fees. They are based on the cost of providing support services to both the Deputy and the person who lacks capacity.
Once the Deputy has been appointed, further fees will be payable in respect of any particular decision which the Deputy asks the Court to make. All fees are payable from the funds of the person who lacks capacity.
Get in Touch with Our Court of Protection Team
Our aim is to provide a personal, individual service in a clear and friendly way, without compromising the quality of advice. We do this by combining highly qualified and experienced solicitors with carefully selected support staff.
Contact us to speak to one of our experienced Court of Protection and Deputyship lawyers for friendly, clear and, above all, practical advice. Please call our team on 01630 652405 or visit: meet the team.
This information refers to the law of England & Wales only, which from time to time changes. In particular, tax information changes annually. It is not a substitute for professional advice, which is up to date and specific to your needs. This information is a summary of the provisions relating to deputyship and cannot cover every aspect of their operation. It represents our understanding of current legislation in England and Wales but should not be relied upon as an authoritative statement of law nor as constituting advice. We would advise that legal advice be sought in every circumstance.
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© 2018 Onions & Davies. Onions & Davies Solicitors is the trading name of Onions & Davies Ltd, Company Reg. No. 8322297, Registered Office address: 91 Cheshire Street, Market Drayton, Shropshire, TF9 3AF. Onions & Davies is authorised and regulated by the Solicitors Regulation Authority (SRA ID Number: 607617)