Deputyship Application

What is a Deputy?

A deputy is appointed by the court of protection to make decisions on behalf of an individual who lacks the mental capacity to do so themselves.

There are two types of deputies:

• A property and affairs deputy – these can manage bank accounts and finances on someone’s behalf.
• A personal welfare deputy – these can make decisions about living arrangements, their care and medical treatment.

What is Professional Deputyship?

A professional deputyship involves appointing an individual expert or organisation to represent someone who lacks the mental capacity to make decisions about their finances and welfare. Anyone over 18 can apply to the court of protection to become a relative’s deputy through a deputyship application.

However, this role can be challenging. Many people therefore find that a professional deputyship is a more suitable option. A law firm, such as Howells, can act as a professional deputy.

Deputyship Order

A deputyship order is a way of obtaining the legal authority to make financial decisions on someone’s behalf if they lack mental capacity to manage their own financial affairs.  This is done by making an application to a specialist court located in London called the court of protection.

The person appointed is called a deputy and is appointed by a court order which sets out the specific powers they have in relation to the person who has been assessed as lacking mental capacity.

Who Can Apply to Become a Deputy?

Usually, a family member will apply to be appointed as a deputy. A deputy must be over 18 and must declare any criminal convictions or bankruptcy arrangements which may lead to the deputyship application being refused. It is possible for more than one deputy to be appointed.

If there is more than one deputy, you need to tell the court how you intend to make decisions.  There are two options:

• This is where all deputies must reach a unanimous decision i.e. they must all agree; or

• Jointly and severally.  This is where deputies can make decisions independently of each other or jointly.

The deputy must also have the necessary skills to be able to make financial decisions for someone else.

If there isn’t a willing or suitable person to act as deputy, a professional deputy can be appointed, and Howells can assist with this.

Contact us or call us on 0114 2743 481 to book your  appointment today.

What Duties are Involved in a Deputyship?

As a deputy you are responsible for helping someone make decisions or making decisions on behalf of that person.

Being a deputy is a big responsibility and you must consider whether the person you are making decisions for has mental capacity every time you make a decision for them.  You cannot assume that they always lack capacity.

The deputyship order will provide details of the specific powers or authority that the deputy has in relation to the person whose financial affairs you will be managing. It is important to note that you will not be able to take any steps or make any decisions in relation to anything that you haven’t been given specific authority to do under the terms of the deputyship order.

The duties and responsibilities of a deputy are laid out in the Mental Capacity Act 2005, together with the relevant Code of Practice which provides guidance. We suggest that you carefully look at these. The main duties of a deputy under the Mental Capacity Act are:

• You must always act in the protected person’s best interest.
• You must not act in a situation where there is a conflict between what is in your interests and what is in the protected person’s interests unless you have first been given permission by the court of protection.
• You must keep the protected person’s money and property in their name, not in your own name.
• You must keep the protected person’s money and property separate from your own.
• You must not make any gifts from the protected person’s money and property (except for small birthday and Christmas presents to close family members) unless you have first been given permission to do so by the court of protection.
• You must keep records of all of your dealings with the protected person’s money and property. You must be able to account for all transactions at the end of the management year by completing a reporting form which you submit to the Office of the Public Guardian.
• You have a duty to manage the protected person’s finances carefully and safely in accordance with any guidance issued by the court of protection or the Office of the Public Guardian.

You must not:

• Restrain the person, unless it’s to stop them coming to harm.
• Take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf.
• Make a will for the person, or change their existing will.
• Make gifts unless the court order says you can.
• Hold any money or property in your own name on the person’s behalf.

How to Apply to Become a Deputy

In order to make a deputyship application to the court of protection, there are a number of forms which must be completed in advance of the application being submitted. The court will make a decision based upon the information contained within those forms. The court also expects there to have been a capacity assessment which will be completed by a medical professional such as a GP, or psychiatrist but this can also be done by a social worker, psychologist or occupational therapist.

You must also name at least three people in your application who know the person you’re applying to be deputy for. For example, their relatives, a social worker or doctor.

Once you have submitted the forms to the court, it will send a stamped copy of the application.  This means that the application has been issued and the court is considering it.  The court will also tell you what to do next.

If the Howells court of protection team are instructed to deal with the application, we will take care of all of this for you.

What Happens After I am Appointed as a Deputy?

The court will send you a ‘court order’ which will specify what you can and cannot do as a deputy.  When you have this, you can start acting on the person’s behalf.

If you need to sell a property that is jointly owned by the person who you are making decisions for you will need to apply for a separate court order.  Similarly, if you need to make a one-off decision for anything that is not covered by the court order, you will also need to apply for a separate order.

You will then need to start telling different organisations that you are appointed as a deputy.  The court will usually send you extra copies of the order for this reason.

You will need to liaise with the person’s bank to be able to start managing it for them.  You will need to show the bank a copy of the court order together with any other identification documents it requests.

You will also need to start keeping meticulous records of what decisions and transactions you have carried out on the person’s behalf.  This is because you will be asked to complete an annual report every year which will need to be submitted to the Office of the Public Guardian (OPG).

Supervision and Visits

The OPG supervise all deputies.  They will contact you or visit you to check that you are adhering to your responsibilities.  They can also offer advice and support.

You may be visited by the OPG to check that you understand your duties, have the correct level of support, are carrying out your duties properly or because you are being investigated as a result of a complaint.  The visitor will tell you the reason for the visit.

How Do I Manage the Accounts and Am I Allowed to Make Gifts?

As stated above, you must keep meticulous records of all decisions and financial transactions you have carried out on the person’s behalf.  You must keep copies of bank statements, contracts for services with tradespeople, receipts and letters and emails about your actions as a deputy.

As far as gifts are concerned, the court order will specify whether you are allowed to make gifts or not.  It will also say if there is a limit on the amount you are allowed to gift.  All gifts must be reasonable and must not reduce the level of care the person you are a deputy for, can afford.

Expenses

You can claim expenses for things you must do to carry out your role as deputy, for example phone calls, postage and travel costs. You cannot claim travel costs for social visits or costs for the time spent carrying out your duties.

It is important to remember that the court may ask you to give a detailed report of what you spent. If the OPG finds that your expenses are unreasonable or not permitted, then you will have to repay the money back.  In addition, you also run the risk of the OPG applying to the court to remove you from being a deputy if they think that you have been dishonest.

How to End Your Deputyship

If you no longer want or need to be a deputy, you will need to complete a form and send it to the court.

If the person you are a deputy for has died, you will need to contact the OPG and send them a copy of the death certificate.  They will then advise you what to do next.

How Much Does it Cost to Apply to be a Deputy?

There are a number of costs associated with becoming a Deputy:-

• The medical practitioner may charge a fee for their report which could be anywhere from £50 to £250.
• The court application fee of £371 (although you may be eligible for an exemption or a reduction depending upon the financial circumstances of the person you are applying for).
• A fee of £494 if the court decides that a hearing is necessary (this is rare).
• An annual supervision fee which is set by the court after the order has been made (the current amounts are either £35 or £320). There is also a one off fee of £100 if you are a new deputy.
• Security bond to cover the deputy’s actions during their appointment as deputy.
• Solicitor’s fees which are fixed by the court where the application is straight forward or agreed between us where it has not been straightforward.

All costs are payable from the assets of the person lacking capacity.

Deputyship Frequently Asked Questions

How long does a Deputyship application take?

The deputyship application process can take between 9 – 12 months in total.

What’s the difference between Power of Attorney and Deputyship?

Creating a Lasting Power of Attorney (LPA) is different because LPAs are appointed by the individual who will be affected by the decisions, prior to losing mental capacity. This individual must understand the powers they are granting to the LPA at the time of appointment. If someone already lacks mental capacity, they cannot establish an LPA. In this case, a loved one would need to apply to the court of protection to have a deputy appointed.

Can you apply for a Deputyship application without a solicitor?

While you don’t need a solicitor to apply to the court of protection, the application process can be lengthy and complex. That’s why we highly recommend consulting with us before you apply. Having a legal expert by your side can help streamline the process, making it quicker and smoother, while also increasing the likelihood of your application being approved.