August 7, 2017Deputyship orders – how do they work?

Deputyship order for elderly person

When someone loses mental capacity and they do not have a Lasting Power of Attorney or an Enduring Power of Attorney in place, someone close to them will have to apply to the Court for a Deputyship Order. There are two types of orders – one for managing finance and one for making decisions in relation to health and care. Here, we look at the process of making an application and we cover some of the most common questions that our clients have.

When is a Deputyship Order necessary?

Deputyship Orders are granted in relation to people who lack mental capacity. A person might lack mental capacity for a range of reasons – some of the most common are dementia and stroke.

Who makes the Order?

Deputyship Orders are awarded by the Court of Protection.

Who can apply for a Deputyship Order?

Anyone can apply who is aged 18 or over. Typically, it will be a family member or close friend of the person that applies for the Order.

What exactly is a Deputyship Order?

There are two types of order. One gives you the ability to manage someone’s finances and property on their behalf. The other gives you the ability to make decisions for them about health and care.

Most orders are in respect of a person’s finances and property – the Court is more reluctant to grant health and care orders. You do not need a Deputyship Order to carry out day-to-day care tasks for a person. These are covered by Section 5 of the Mental Capacity Act 2005 which states, in summary, that if you do an act of care for someone who lacks capacity that is in their best interests (such as helping them to dress, cooking them meals and cleaning their house) and they would have consented to you doing this if they had capacity, you will not incur any liability. This does not, of course, exclude any liability for damaging their property or performing the act negligently.

The Court will consider appointing a Deputy for health and care decisions where there is some dispute as to what is in the person’s best interests. For example, if there are ongoing disagreements as to the person’s care with the family or social services, this would be an appropriate time for a family member to apply for an Order.

The Order can either settle a single dispute or can provide a Deputy with the right to make ongoing decisions.

However, be aware that if a family cannot agree and one family member applies, it is likely that the other family members will dispute the application. This could result in a hearing with additional costs.

Can I get an urgent Order?

Yes – there are two types of urgent order. The first is an urgent interim order. This is helpful if, for example, the person is being discharged from hospital and you need funds to pay for care. It does not cost anything extra to request an urgent interim order as it is done as part of the regular application process but you should be aware that the order won’t come through for at least a couple of weeks.

The other type of urgent order is an emergency order. This will only be granted in a very serious situation – for example, if an emergency decision is needed regarding some urgent medical treatment, or the person is about to be removed from where they are living. Contact the Urgent Business Officer to make an emergency application on 020 7421 8824.

What does it cost to apply for an Order?

Cost of applying for Order

The costs are as follows:

  • £400 court fee for each type of application (property/finance or health/care)
  • £500 hearing fee, only if the court decides a hearing is needed
  • £100 new deputy fee for each deputy (unless they are already acting as a deputy for someone else)
  • £320 general supervision fee for the first year – this may reduce to £35/year after the first year if you are only managing a small amount of money for the person
  • In addition, the court will ask for a bond which is a type of insurance policy to protect the person’s assets. This is an annual fee. As an example, for a £60,000 bond, the fee would be around £45/year for  the first two years and £30/year for each year after.
  • Legal fees – these vary significantly from one lawyer to the next. Call us on 08700 120 130 or email info@aprilking.co.uk for details of our fees.
  • Doctor’s fees – a report is required on the person’s mental capacity. Sometimes the Doctor will charge for completing this.

Help with fees

There is help available with court fees for those with very low incomes/savings.

If it is Property & Finance order, the eligibility depends on the finances of the person who the order is about.

If it is a Health and Care order, the eligibility depends on the finances of the person who is applying to be a deputy.

You will need to go through the appropriate finances with your lawyer to find out if help is available.

One point to aware of is that if you apply for help with the property/finance order, often the Court will want to see proof of the person’s income and of course, you may not have access to bank statements just yet. You may therefore have to pay the Court’s fees up front and reclaim them within 3 months of the Order being made.

Reclaiming fees

If the application is for a Property & Finance Order, the applicant CAN reclaim all legal fees / court / bond fees from the finances of the person who the order is about – once the order has been made.

If the application is for a Health and Care Order, the applicant CANNOT reclaim legal fees / court fees.

HOWEVER, if the application is for both types of order, the applicant CAN reclaim all legal fees/court fees from the finances of the person who the order is about, as these are legitimate expenses of a Property/Finances Deputy.

The application process

Lawyer completing forms

1: Initial forms completed

The first stage of applying to be a Deputy involves submitting a range of forms together with evidence that the person has lost mental capacity. Your lawyer will take the information they need from you to complete the forms. A face-to-face meeting is not necessary – all the required information can be taken over the phone.

The initial forms required include:

  • An application form (COP1) for each type of application
  • An assessment of capacity form (COP3) to be completed by the person’s Doctor or Consultant
  • A deputy’s declaration (COP4) for each deputy
  • An information form (COP1A) for property and affairs deputies
  • An information form (COP1B) for health and care deputies
  • COP44a if you are applying for help with Court fees but see above comments regarding evidence.

2: Application issued

Once the initial forms have been completed, the Court ‘issues’ the application and provides directions. These include strict deadlines that must be met.

3: Notification

At this stage your lawyer will help you draft a further set of forms which enables you to:

  • Notify any potential respondents of the application, giving them a chance to be joined onto the proceedings if they would like to (for example, if they do not agree with your application).
  • Notify all ‘persons to be notified’ – typically these are close family members and close friends who are involved with the person but generally are unlikely to object to your application.
  • Tell the Court that the process of notification has been completed.

4: Order made

Once this stage is complete, the next thing you will hear will hopefully be the Court granting the Order. This can take a number of weeks.

5: Bond obtained

At this stage, for property/finance orders, the Court will ask for the bond to be arranged. The letter from the Court will explain that this can be done online. Copies of the Order will not be sent to you until the bond is in place.

6: Copies of order sent

Once the bond has been arranged, the bond company will notify the court straight away that the bond has been paid. The Court will then send you copies of the Deputyship Order. You can use these to notify the various financial organisations that you are acting as Deputy for the person.

7: Reclaiming court fees

Finally, if needed, you can now deal with getting the court fees back (if the person was entitled to help but not able to provide copies of the person’s bank statements etc when making the application).

Do I have to use a lawyer?

You aren’t obliged to use a lawyer when making your application for Deputy. However, the process does require that the forms are completed fully and correctly, and in some areas specific wording is required. Some of our clients come to us having attempted to complete the process themselves, only to find that their application is rejected.

What are my ongoing duties as a Deputy?

Acting as Deputy

Once appointed, you need to read the Court Order carefully and see what it allows you to do. For example, the Court Order may allow you to buy gifts or give gifts of money on behalf of the person, which might including donations to charity. It will also say if there’s an annual limit on how much money you can use for gifts. However, gifts must be reasonable and must not reduce the standard of living for the person. You must apply to the Court of Protection if you want to make a one-off large gift – for Inheritance Tax purposes, for example.

You may only act where the person cannot make the decision themselves – some people may lack mental capacity to handle one particular decision but be capable of understanding another.

Your actions must always be in their best interests and must take into account their wishes, feelings and previous conduct. So, for example, if they previously gave all of their nieces and nephews a Christmas gift of £50 including one nephew who they knew would squander the gift every time, you would continue gifting the same way even if you did not personally agree with their choices or generosity.

The Court will provide help and support in carrying out your duties. This may include visits from the Court to advise you and ensure you are carrying out your duties properly.

If you are a property and finances deputy, you will need to keep copies of:

  • bank statements
  • contracts for services or tradespeople
  • receipts
  • letters and emails about your activities as a deputy

Can I claim expenses as a Deputy?

You can claim expenses for things you must do to carry out your role as Deputy – for example making phone calls, posting letters and travel expenses. You cannot claim:

  • travel costs for social visits
  • for the time spent carrying out your duties (unless you’re a professional deputy, for example a solicitor)

You may be asked to give a detailed report of what you spent. You’ll have to pay the money back if the Office of the Public Guardian finds your expenses are unreasonable. They may ask the court to stop you being a Deputy if they think you’ve been dishonest.

If you would like to apply for a Deputyship Order, contact Mrs Harjit Soor on 08700 120 130.

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