What is a Court of Protection Deputy?
When it is decided that you have lost the ability to make decisions, if you are one of the 94.5% of the population NOT properly protected by Lasting Powers of Attorney, someone has to run your life until such time as you recover, or die. A Court of Protection Deputyship is neither simple nor inexpensive and is definitely best avoided by advance planning! And as for leaving precautions until you are old – 75% of mental illness can be tracked back to have started before the age of 18. Additionally, accidents & strokes are just unpredictable causes of problems.
Once you have read this, please call us or use the form below so you can be sure of avoiding the clutches of the Court of Protection once everything is in place. Do not leave it – you never know if tomorrow will be too late!
Things like selling your home, moving you into care – or out – and a hundred financial and welfare decisions still have to be made. Bills have to be paid, and medical decisions made. So someone needs to act on your behalf. Less than 1 in 20 will have chosen who is to make those decisions by making Lasting Powers of Attorney. 19 out of 20 of the public have (in effect) decided to leave it to the Court of Protection to make those decisions on their behalf, at a significant cost.
19 out of 20 People at RISK.
If there is no valid finance Lasting Power of Attorney (or old-style Enduring Power of Attorney) then the Court of Protection will need to appoint a Deputy who will be authorised to make decisions on their behalf. The other type of LPA is the Health and Welfare one, dealing with medical matters – this power the Court of Protection rarely grants to applicants and each decision has to be the subject of an application to the Court.
Anyone over 18 can apply to the Court to become a Deputy. As such, the appointed Deputy may be a family member, a close friend, a neighbour, or a professional such as a Solicitor, or Trust Corporation or the Court may be appointed Deputies to act jointly (i.e., they must all agree on the decision) or jointly and severally (i.e., they can make decisions together or independently).
If there is doubt or disputes over who should be appointed, then the Court will lean towards appointing a professional, whose (significant) fees (and those of the Court) will be charged to your assets.
If you have got this far, and haven’t yet decided that you need Lasting Powers of Attorney, please do read on below the form! Avoid having an expensive and slow application for a Court of Protection Deputyship…
What does a Court of Protection Deputy do?
A Deputy, if appointed by the Court, is there to help you with:
- Property and Financial affairs
- payment of bills
- organisation of personal finances.
- A Deputy may also need to make decisions, once they have obtained the Court’s permission, in respect of the sale and/or purchase of property or how a person’s savings should be invested.
- Health and Welfare – health and welfare deputies are not often appointed.
The holder of a Court of Protection Deputyship for Health and Welfare makes decisions about many of the most important issues in your life: medical treatment, where you live and how you are looked after. However, they will usually only be appointed if:
(a) there is doubt as to whether decisions will be made in your best interests or
(b) someone needs to be appointed to make a decision about a specific issue (for example. where you will live).
Following a Deputy’s appointment, your Deputy will receive a Deputyship Order, which sets out, what the Deputy can and cannot do. A Health and Welfare order will be sent to your Deputy as soon as they are appointed. However, the Property and Financial affairs Deputy must set up a security bond before the Deputyship Order can be issued. This is intended to protect you from financial exploitation by the Deputy.
The Deputy will be supervised by the Office of Public Guardian, which can provide the Deputy with advice and support.
A Court of Protection Deputy must make Best interest decisions.
A Deputy has a duty to ensure they always act in your best interests and remain mindful of Section 4 of the Mental Capacity Act 2005.
In particular, the Deputy should consider the following before making any decision:
(a) your past and present wishes and feelings (this may include reviewing a copy of your current will to ensure that any financial decision the Deputy intends to make does not conflict with your Wills stated intentions). Of course, if you have no Will or (worse) it is out of date, they may not get it right.
(b) Your beliefs and values that would be likely to influence your decisions if you had capacity; and
(c) other factors that you would likely consider if they were able to do so.
Understanding your Will helps the Deputy ensure any decision they make is in your best interests.
Disclosure of a person’s will to your Court of Protection Deputy – the potential benefits to you:
The Law Society’s guidance in respect of “Access and Disclosure of an incapacitated person’s will” is aimed at those who store wills (in our case, the Peace of Mind Service) and provides useful information as to when it is appropriate to disclose a copy of a client’s will to a Property and Financial affairs Deputy.
Seeing the latest Will means your Deputy will be in a better position to be able to:
(a) obtain and act upon appropriate professional advice;
(b) use suitable investments;
(c) ask the Court for an order to save a specific legacy (so far as possible) where disposal of an asset is required, to avoid disinheriting people left something specific in your Will;
(d) apply to the Court, where necessary, for the approval of a Statutory Will to reflect your intentions and new circumstances; and
(e) arrange for the safekeeping and storage of relevant assets.
Those holding your Will would normally ask for a copy of the Deputy’s Order as it might say that the Deputy is not entitled to see a copy of your Will.
It is good practice for those storing your will to write to you initially to try to obtain your consent to disclose.
In the event that disclosure of the will is made to the Deputy, the Deputy should also ensure they consult and try to involve you in any significant decision they intend to make on your behalf, though the amount of effort they put in will vary and be reflected in their bill if they are professionals. The Deputy will be expected to report any significant decisions to the Office or the Public Guardian in their annual report.
When disclosure of your Will may not be appropriate.
Normally it would be in your best interests to disclose your Will to the Deputy, e.g. if you have given clear instructions that your Will should not be disclosed prior to your death, those holding the will should not disclose it to anybody including a Deputy UNLESS the Deputy has obtained a specific Order from the Court in respect of disclosure of your Will. It is possible to dispute such an order but it is time-consuming and expensive.
Examples of concerns may include your Deputy:
(a) wishes to transfer an asset to themselves or someone related or connected to them;
(b) is not making arrangements for the client’s care fees to be paid;
(c) there is a live investigation into or an application being considered by the Court for the removal of your Deputy; or
(d) has had an unexpected change in lifestyle or circumstances.
If a decision is made not to disclose, a refusal notice should be provided to the Deputy and the Office of the Public Guardian should be informed if there are any concerns in respect of your Deputy’s behaviour.
