By Sophie Lawrence, Senior Associate and Head of Court of Protection, Shelby Gordon, Trainee Solicitor.
When a person loses the mental capacity to make decisions for themselves, someone else may need to make decisions on their behalf about their finances, property, or personal health and welfare.
If there is no Lasting Power of Attorney ("LPA") in place, the Court of Protection can appoint a Deputy to make decisions for the individual. This process is known as a Deputyship application (or "Deputyship").
As part of our Court of Protection article series, this FAQ is designed to help you understand how Deputyship works in practice and what to expect from the Court of Protection process. It has been prepared by Sophie Lawrence, Senior Associate and Head of Court of Protection, and Shelby Gordon, Trainee Solicitor, in our specialist Court of Protection team.
Deputyship: Your Key Questions Answered
1. What is Deputyship?
Deputyship allows Court-appointed individuals (the Deputy) to make decisions for someone who lacks the capacity to manage their own affairs. This may include managing money, paying bills, or making decisions about property or health and welfare matters.
2. Who can be a Deputy?
Deputies can be family members, friends, or professionals, such as specialised lawyers.
Professional Deputies can be a key way to remove stress from families. The professional deputy will work with families to understand what may be in the best interests of the individual lacking capacity, while relieving pressure and responsibility from relatives and close friends.
3. What are the different types of Deputyship?
There are two types of Deputyship:
- Property and Financial Affairs
- Health and Welfare
4. How do I apply to become a Deputy?
An application must be made to the Court of Protection. The process typically involves:
- Completing the Court forms.
- Obtaining a mental capacity assessment.
- Completing the notification of parties process.
- Paying the relevant Court application fee.
The Court will then assess if the appointment is necessary and who is suitable to act as Deputy.
Note: It is advisable to instruct a legal professional to draft these forms, as it is imperative that the Court is persuaded that your appointment will be in the best interests of the individual.
5. How long does the Deputyship process take?
It can take several months from application to appointment, depending on the complexity and whether there are any challenges to the application. If Deputyship is required, it is therefore advisable to start the process as soon as possible.
6. What is the role of the Court of Protection?
The Court of Protection oversees the individuals appointed as Deputies, ensuring they act in the best interests of the person who lacks capacity.
7. What powers does a Deputy have?
A Deputy’s powers are defined by a Deputyship Court Order.
For Financial Affairs Deputies, powers may include:
- Managing bank accounts
- Paying bills and ongoing expenses
- Selling or purchasing property
- Claiming and managing benefits
Health and Welfare Deputies may be authorised to make decisions about healthcare and living arrangements. They cannot, however, make decisions about life-sustaining treatment unless the Court specifically authorises it.
Advice: When you receive a Court Order of appointment, it is advisable to seek professional legal advice as to the scope of the Order. Deputyship Orders can be broad in the powers given, and advice is recommended to help understand what actions and decisions fall within the general scope of the Deputyship Order.
8. What responsibilities does a Deputy have?
Deputies must:
- Act in the best interests of the person who lacks capacity.
- Keep detailed records of all decisions made and transactions on behalf of the person.
- Avoid conflicts of interest.
- Report regularly to the Office of the Public Guardian (OPG).
Deputies must make decisions in line with the Mental Capacity Act 2005 and should have knowledge of its principles and requirements.
9. Are Deputies supervised?
Yes. Deputies are supervised by the Office of the Public Guardian (OPG).
Deputies must:
- Submit annual reports and accounts.
- Keep clear records of all transactions made on behalf of the vulnerable individual and all best interest decisions made.
10. Can the person who lacks capacity object to the Deputyship?
Yes. The person who lacks capacity, and others interested in their welfare, can raise an objection(s). The Court of Protection will consider all evidence before deciding whether to grant or refuse the Deputyship or to make alternative arrangements.
11. Are Deputies paid?
Family members and friends ordinarily act as Deputies voluntarily. Professional Deputies can charge fees for their services. These fees are subject to Court approval and are usually paid from the funds of the person who lacks capacity.
12. Why is Deputyship Important?
Deputyship provides an important legal safeguard, ensuring that individuals who cannot make decisions for themselves have someone authorised and accountable to protect their best interests.
Whilst it involves a formal Court process and ongoing oversight, it helps ensure that the person’s finances, property and welfare are managed responsibly, lawfully, and with respect to their dignity and rights.
How We Can Help
At Blanchards Bailey, our specialist Court of Protection team advises on all aspects of Deputyship and mental capacity law. If you are considering making a deputyship application, or seeking tailored legal advice on Deputyship or any Court of Protection matter, please contact Sophie Lawrence, Senior Associate and Head of Court of Protection.
- Telephone: 01258 459361
- Email: blandford@blanchardsbailey.co.uk
- Location: Blandford, Dorchester.
You can also visit the Court of Protection page on our website for more information.
So, how can we help?
Whatever your requirements, our team is standing by.
Call us today on
01258 459361