What is a Deputyship Order?
If someone close to you has lost mental capacity and in the absence of an Enduring or Lasting Power of Attorney, you may need to apply to the Court of Protection for a Deputyship Order. This allows you to help them with decisions. There are two types of Deputyship Order - Property and Financial affairs, and Personal Welfare. As you might expect, a Property and Financial Affairs Deputyship Order allows you to assist the person with decisions relating to their finances such as paying bills and collecting their pension. A Personal Welfare Deputyship Order allows you to assist the person with decisions relating to their care, such as what they should eat, or the type of treatment they should receive.
In all cases as a Deputy, you will follow the Mental Capacity Act 2005 which requires that you consider the person's capacity every time you make a decision for them. Deputies must ensure that they always act in the person's best interests and take into account what that person has done in the past. As far as possible, the person should be involved in the decision together with any other relevant appropriate people such as relatives or doctors. In any event, you must take all possible steps to ensure that the person understands the decision made for them.
What does it mean to lose mental capacity?
Someone close to you may have lost mental capacity because:
They have dementia
They have suffered a serious brain injury or illness
They have severe learning disabilities
Losing mental capacity means that the person cannot understand and make decisions for themselves. This means that they are unable to:
Understand the information relevant to the decision
Retain that information
Use or weigh that information as part of the process of making the decision
Communicate their decision (whether by talking, using sign language or any other means).
The law on what it means to lose capacity can be found in the Mental Capacity Act 2005, section 2.
Some people have the mental capacity to make some decisions but not others. For example, a person may be able to choose the clothes they want to wear or what they want to eat, but may not be able to manage their financial affairs.
If you are appointed as a Deputy, you will be obliged to act in the person’s best interests, consider anything the person might have done in the past, and try to help them understand decisions as far as possible.
Note that mental capacity in relation to making a Lasting Power of Attorney or Deputyship Order is assessed using the Mental Capacity Act 2005. By contrast, mental capacity in relation to making a Will is assessed using criteria in a very old case: Banks v Goodfellow.
What powers does a Deputy have?
A Deputy is authorised by the Court of Protection to make decisions for someone who has lost mental capacity. The Court will decide who should be a Deputy for the person concerned and if you are appointed, they will advise you on how you can act and what you can’t do. If there is more than one Deputy they will advise if decisions should be made jointly (all Deputies must agree) or jointly and severally (Deputies can act independently of each other).
A Deputy for Property and Financial affairs can assist the person with paying bills, managing their accounts, collecting their pension and most simple financial transactions.
They cannot sell the person's house, unless their court order says directly that they can. For any decision like this, they would need to apply to the Court for specific permission (which incurs the Court's usual application fee of £365).
Property and Financial Affairs Deputies can use the person's funds to purchase and pay for items or services that are in the person's best interests. Basically, these are items that would either maintain or improve the person's quality of life. This might be new clothes, a trip to the hairdresser, furnishings for their home or room within a care home, carers so they can go visiting, take part in groups or even go on holiday. As with all decisions, the purchases must be in the person's best interests and they must be involved with the decision as far as possible. In addition, any purchase should be in keeping with the value of their assets.
They can make limited gifts on the person’s behalf, although any gifts will need to be explained on their annual Deputy report. Generally gifts should be limited to customary occasions, such as anniversaries or birthdays, and again they will need to consider what the person did prior to them being appointed.
They can appoint professionals such as accountants and solicitors to help manage the person’s affairs provided it is proportionate to do so. For example, it would not be proportionate to employ a solicitor to pay the person's electricity bill! Professionals should only be used where the Deputy does not have the relevant expertise to manage the task.
Property and Financial Affairs Deputies cannot normally make loans from the person's funds without the Court's permission.
Looking now at Personal Welfare Deputies - these have the power to make decisions about how the person is looked after and what medical treatment they receive. All of the above principles apply in that the Deputy should involve the person in the decisions so far as possible and take their previous actions, feelings and beliefs into account.
A Personal Welfare Deputy cannot restrain the person, unless it’s to stop them from hurting themselves. Neither can they stop life-sustaining medical treatment.
For more information, there are some useful guides to being a Deputy linked below.
Who can be a Deputy?
Anyone over the age of 18 can apply to be a Deputy for someone who needs their help. Usually, a Deputy will be a close relative or friend of the person they want to help. It is unlikely that the Court would agree to appoint someone who does not have a close relationship with the person needing help.
If you are applying to be a Property and Financial Affairs Deputy and you are bankrupt or subject to a debt relief order, you must declare this on the application form – which will usually lead to the application being rejected.
You can still act as a Personal Welfare Deputy if you are bankrupt or subject to a Debt Relief Order.
How much does it cost to apply for a Deputyship Order?
There are fees payable to the Court of Protection for applying to be a Deputy, as follows:
£365 application fee for each type of Deputyship sought (i.e. £365 for a Property and Financial Affairs Deputyship application, and £365 for a Personal Welfare Deputyship application).
£485 if the Court decides that a hearing is necessary (for example, if there is some dispute as to who should be Deputy).
If the Court agrees that you should be a Deputy, they will also charge:
£100 new Deputy fee for each deputy, unless you are already acting as a Deputy for someone else.
£320 annual supervision fee - this is always payable in the first year but may be reduced to £35 if you are a Property and Financial Affairs Deputy and the person’s estate is worth less than £21,000.
NB: You can claim back the application fees from the person’s funds that you are helping, if you are a Property and Financial Affairs Deputy.
For Property and Financial Affairs Deputyship orders the Court will also require that you provide a bond. This is a type of insurance policy that guarantees the funds of the person you are acting for, should they be mismanaged. The Court will tell you how much the bond should be for.
Discounts on the application fees are available to those on a low income. The income to be assessed depends on the type of Deputyship Order you are applying for, as follows:
Property and financial affairs – eligibility for discount is assessed on the finances of the person you will be helping. A discount may be available if they earn less than £12,000 per annum and/or are in receipt of certain benefits.
Personal welfare – eligibility for discount is assessed on your income. A discount may be available if you earn less than £12,000 per annum and/or are in receipt of certain benefits.
In addition to the Court fees, there are legal fees for the work involved in preparing your application to be a Court of Protection Deputy. We can advise you on costs once we have had a brief chat with you about what you would like to achieve.
Can I make a Lasting Power of Attorney for someone who has lost mental capacity instead?
Once someone has lost mental capacity, they cannot make a Lasting Power of Attorney. A Deputyship Order is the only option at this stage.
If the person concerned has recently had a diagnosis of dementia but this is in the early stages, they may still be able to make a Lasting Power of Attorney – provided that they still have mental capacity. They only need to be able to understand their decision to make a Lasting Power of Attorney – it does not matter if there are some other decisions they can no longer understand (for example, decisions relating to complex finances or investments). If the person concerned already has a valid Lasting Power of Attorney or an Enduring Power of Attorney, a Deputyship Order won’t be necessary for the decisions covered by those documents. For example, if they have a Finance and Property Lasting Power of Attorney, you will not need to get a Financial Affairs Deputyship Order.
However, if they have only one type of Lasting Power of Attorney (for example, covering financial decisions but not covering health and welfare decisions), you may need to get a Deputyship Order covering the other type of decisions. Speak to us if you are in any way not sure about this.
What if someone has good days and bad days - do they need a Deputyship Order or Power of Attorney?
The fact that someone has bad days does not automatically bar them from making a Lasting Power of Attorney. This may be the case in the earlier stages of dementia. Section 3 of the Mental Capacity Act says that if you need to present certain information in a particular way so that the person understands it (and that might include presenting it on a particular ‘good’ day) this is acceptable. Further, Section 3(3) of the Act shows that the fact that someone might sometimes be forgetful is not a bar to them making an Lasting Power of Attorney. Speak to us and we will be able to advise.
Most of the people we help require a Property and Financial Affairs Deputyship Order to ensure the smooth running of the person’s financial affairs. However, if required, April King Legal can help you obtain both types of Order.
Your lawyer will complete all the paperwork on your behalf and liaise with all relevant parties. This can be a stressful time for those involved and we do all we can to make the process as swift and painless as possible.
Find out more:
- How to be a Property and Financial Affairs Deputy
- How to be a Health and Welfare Deputy
- Can I get Power of Attorney for someone with dementia?
- Do I need a Deputyship Order for my mother?
From the blog:
Figures released by the Court of Protection show the average time to complete a Deputyship Order is 34 to 47 weeks (finance) and over a year (health).
We look at whether a deputyship order is necessary where a person has ‘good days and bad days’, or whether a Lasting Power of Attorney can still be made.
21st to 27th of May is Dementia Action Week – an event organised by the Alzheimer’s Society in support of dementia sufferers, their families and carers. We look at the main messages behind the campaign and what you can do to show your support.