Deputyship Orders

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. We can assist with this process.

Deputyship

Deputyship Orders – what are they?

A Deputyship Order gives you the legal authority to make decisions for someone else who has lost mental capacity. This might be for someone who has had a serious brain injury or illness, or who has developed a disorder such as dementia. Alternatively it might be because the person has severe learning disabilities.

Types of order

There are two types of Deputyship Order – Property and Financial Affairs, and Personal Welfare. A Property and Financial Affairs Deputyship Order allows you to pay bills and manage someone’s finances for them. A Personal Welfare Deputyship Order allows you to make decision as to their medical treatment and how they are cared for.

Personal Welfare Orders

The Court of Protection will not generally grant a Personal Welfare Deputyship Order unless there is good reason. Most day-to-day care is covered by the Mental Capacity Act. However, a good reason to apply for a Personal Welfare Order would be where there is disagreement as to how someone should be cared for, or the need for ongoing decisions to be made in relation to a specific matter.

The application process

Applying for a Deputyship Order involves the accurate completion of a range of paperwork which is then submitted to the Court. The grant of a Property and Financial Affairs Order can take around 4 – 6 months, although Court backlogs and inaccuracies in the paperwork can delay this further. A Personal Welfare Deputyship Order may take longer, as it is more likely that a hearing will be necessary.

  • The cost of applying for a Property and Financial Affairs Deputyship Order can be recovered from the person’s funds, once the order has been granted.
  • The cost of applying for a Personal Welfare order is only recoverable from the person’s funds if you also hold Property and Financial Affairs Deputyship.

We offer a free initial appointment to discuss making one or both types of Deputyship Order, without any obligation. Our headquarters are in Nottingham and we have locations across the UK. We also offer video and phone appointments. You’ll find our fees extremely competitive in comparison with other firms.

Call us:

0800 788 0500 9am – 5pm Mon – Fri

Or email: jen@aprilking.co.uk

Deputyship Order Costs

Our fee to prepare and submit an application for a Property and Financial Affairs Deputyship Order is £900 + VAT. In addition, there are a number of disbursements that are outside of our control:

  • £365 Court application fee
  • Medical report
  • £465 Court fee if there is a hearing
  • £100 New deputy assessment fee
  • Bond – depending on person’s assets
  • £320 Annual supervision fee

Medical report: The Medical Report is a form that must be completed by a suitable professional. This confirms that the person has lost mental capacity. Often a GP or consultant will complete this form and will charge a fee for doing so. This fee can vary greatly from £50 to £500 – it is entirely down to the professional.

Hearing fee: In straightforward cases where nobody disputes that you should be a Property and Financial Affairs Deputy and there is no obvious reason why you should not be appointed, it is unlikely that the Court will insist on a hearing. However, this is always a possibility. Hearings are more common for Personal Welfare applications.

Bond: The bond is like an insurance policy to safeguard the person’s assets. The cost depends on the value of the assets. If the person has £250,000, the cost would be around £500. This is organised once you have been appointed as a Deputy.

Annual supervision fee: The annual fee of £320 may be reduced to £35 where the person’s assets are worth less than £21,000.

For budgeting purposes, it is worth knowing that the fees you will need to find ‘up front’ are the legal fees and Court application fee. The rest of the fees will become payable as the matter progresses.

Our fees for dealing with a Personal Welfare application will depend on the nature of the application itself. Please get in touch to discuss the reasons for needing the Order and we will be able to provide a realistic quotation. The cost of applying for a Personal Welfare order is only recoverable from the person’s funds if you also hold Property and Financial Affairs Deputyship.

Please note that all work involved in managing the whole process of applying for your Order right up to the grant of the Order is included in our fixed fee, except for representation at a hearing, should one be necessary.

Your Court of Protection Team

Lee Southern

Lee Southern SOLICITOR

Solicitor Lee Southern was admitted to the roll in June 1982. He holds the LL.B (Hons) and is a member of CoPPA, the body that represents the interests of those working with the Court of Protection. Prior to joining the team, he has worked in many areas of law including matrimonial, conveyancing and civil litigation. He has also represented clients both in the Queen’s Bench Division and Court of Appeal.

Jen Wiss

Jen Wiss SOLICITOR AND FCILEX

Solicitor Jen Wiss-Carline has worked in law for almost 20 years. Her experience spans both private practice and in-house, covering a range of areas. She writes extensively for the firm’s blog and has contributed to a number of other publications including LexisNexis, the CILEX journal and the Parliamentary Review. Jen was Highly Commended by CILEX in 2018 for her Private Client expertise.

FAQs

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. Property and Financial Affairs Deputyship Orders allow you to assist the person with decisions relating to their finances such as paying bills and collecting their pension. Personal Welfare Deputyship Orders allow 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.

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, see the guides 'How to be a Property and Financial Affairs Deputy' or 'How to be a Health and Welfare Deputy'.

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. In addition, if you want to be a Property and Financial Affairs Deputy, the Court will expect you to have the skills to manage the person's finances.

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. Our fees are £900 + VAT for assisting with a Property and Financial Affairs application. If you would like to apply for a Health and Welfare Order, we can advise you on costs once we have had a brief chat with you about the circumstances.

Can I make a Lasting Power of Attorney 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.

Does someone who has good days and bad days need a Deputyship Order or Lasting 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.

What does Deputyship mean?

Deputyship means having the the legal authority to make certain decisions on behalf of someone else who has lost mental capacity. A Deputy may have authority to make decisions relating to property and financial affairs, or personal welfare, or both.

What is the difference between a Deputyship Order and Lasting Power of Attorney?

A Lasting Power of Attorney is made by someone who has mental capacity. It allows them to choose who they'd like to make decisions for them. This person is called their Attorney. A Deputyship Order is granted by the Court of Protection, in relation to someone who has lost mental capacity. The Court decides who should have the power to make decisions for them.

How do I become a Deputy in the UK?

You will need to apply to the Court of Protection to become a Deputy. You must complete an application form (COP1), a deputy’s declaration (COP4)
and form COP1A and/or COP1B, depending on the type of order you are requesting. You will also need to arrange to have an assessment of capacity form (COP3) completed.

Can a Deputy act as an Executor?

If someone has died and their only Executor has lost capacity, an application can be made to the Court of Protection for a Deputyship Order to manage the Executor's affairs. If the Court grants an order, the Deputy will be able to manage both the estate of the Deceased and the financial affairs of the Executor.

What does a Deputy do?

A Property and Financial Affairs deputy will do things like pay bills or organise the pension of the person they act for. A Personal Welfare deputy will make decisions about the person's medical treatment and how the person is looked after.

In all cases when making a decision 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.

How long does it take for the Court of Protection to appoint a Deputy?

This varies depending on the Court's workload. It can take 4 - 6 months typically, although when the Court is very busy, it can be much longer. Mistakes with the forms and inadequate responses can delay the process even further. This is why using a solicitor is advisable. Where a decision or funds are needed quickly, an urgent or emergency application can be submitted.

Who can make an application to the Court of Protection?

Anyone can apply to be Deputy for someone who has lost mental capacity. You do not have to be a relative. However, you will need to justify to the Court why you (and not someone else) should be appointed as Deputy for the person in question.

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