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Our deputyship solicitors support people when mental capacity issues mean someone needs to be appointed to make decisions on their behalf.
A deputy steps in when someone does not have the ability to make their own decisions and does not have an existing power of attorney authorising someone else to make decisions for them.
Our experienced mental capacity team has extensive knowledge of all aspects of deputyship.
- act as professional deputies, where required, including in complex cases
- provide support to lay people (usually family members) in all aspects of the process of becoming a deputy
- support people in their duties as a deputy.
We can help when there are disagreements over decisions that need to be made for a person who lacks mental capacity or where someone is struggling with the role of being a deputy.
Types of deputy and how we help
There are two types of deputyship granted by the Court of Protection.
1. Property and affairs deputy
This type of deputy is appointed to look after a person’s financial interests and make decisions about assets they own, such as houses and savings or compensation awards.
Where someone has a large compensation award due, such as due to a serious injury, we are often appointed to help relieve the burden of ensuring the money is well looked after to provide long-term security and can be accessed for all the things the person needs.
2. Personal welfare deputy
This type of deputy takes on the role of making specific medical and healthcare decisions for a person who is unable to decide for themselves.
Cases where a personal welfare deputyship may be sought include parents who wish to remain at the heart of decision making for their mentally incapacitated child after they turn 18 or where there have been disagreements over the right way to care for someone.
Duties of a deputy
All deputies must be appointed on order of the Court of Protection and are closely supervised by the Office of the Public Guardian.
Like those who hold Power of Attorney, every deputy must act in accordance with the principles of the Mental Capacity Act 2005, work closely with family members, and consider every decision that they make very carefully to ensure that it is in the best interests of the person that lacks capacity to make it.
The order appointing the deputy will not necessarily give the deputy the power to do everything during the course of their appointment. If a deputy needs to do something that is not covered by the existing order then it will be necessary to make an application to the Court of Protection.
Applications to the Court of Protection can cover a wide range of issues including:
- the power to buy or sell property
- buying property jointly with family members
- investing in non-standard investments (buy-to-let/holiday properties, ethical investments etc.)
- statutory wills
- making gifts.
Our team is experienced in dealing with a wide range of matters that may require a separate application to be made to the Court of Protection.
WE WERE APPOINTED TO ACT AS DIANNE'S FINANCIAL DEPUTY AND WORKED WITH THE TEAM MANAGING HER CLINICAL NEGLIGENCE CASE UNTIL IT WAS SETTLED.
Deputyship solicitors – How We helped Dianne
Dianne* is a lady in her 30s who suffered a severe brain injury when she was born. We were appointed to act as her financial deputy and worked very closely with the team managing her clinical negligence case until it was settled.
Dianne lives with her family in the south west of England in a house owned by her mother. When her award was finalised, significant adaptations needed to be made to her mother’s house.
In order to protect Dianne’s investment in the house, acting as her deputy we applied to the Court of Protection for authority to secure the investment by way of a secure loan against her mother’s house.
This meant that Dianne could live in a home specifically adapted for her needs and also have her investment in the house protected, which was in her best interests.
*Name has been changed to protect our client’s identity
What is the difference between a deputy and power of attorney?
When a person loses mental capacity to make decisions for themselves and they do not have a power of attorney in place, then the Court of Protection will need to appoint a deputy to make decisions for that person.
A Lasting Power of Attorney is something that a person can put in place when they have mental capacity (the ability to make their own decisions) in order to appoint someone to make help make decisions for them, particularly in the future if they are no longer able to do it for themselves.
A deputyship is awarded by the Court of Protection where someone applies to help make decisions for someone who is unable to make decisions for themselves. This may be due to something temporary, such as a coma, or long term, such as a serious brain damage.
What is a professional deputy?
A professional deputy is a professional, such as a solicitor or accountant, who is appointed to make decisions on behalf of a person who lacks the ability/mental capacity to do it themselves.
There are occasions when the Court of Protection prefers to appoint a professional deputy, such as when a person has had a large award of damages due, for example, to personal injury or medical negligence.
In other circumstances lay people, such as family members or legal guardians, can act as deputies for people who lack mental capacity – but some people still prefer to appoint a professional.
Professional deputies can:
- take some of the load off family members who may already have a lot to deal with when looking after a person with restricted mental capacity
- bring expertise to the management of finances to minimise costs and maximise savings
- bring expertise to the process of dealing with the Court of Protection and other legal processes.
You can find out more about the roles and responsibilities of professional deputies and lay deputies via our guide.
Can you have multiple deputies?
It is possible for more than one deputy to be appointed to look after someone’s needs.
When there are multiple deputies it’ll be necessary to detail – in the court order – whether decisions will need to be made either ‘jointly’ or ‘separately or together’.
All deputies must have sight of – and agree to – all decisions in situations when it has been agreed that decisions must be made ‘jointly’.
In cases where decisions can be made ‘separately or together’ each deputy is empowered to make decisions alone.
We can offer support in the process of establishing deputies and deputyship decision arrangements.
We can also act as professional deputies and represent many clients in this way. Additionally, we can provide support when there are disagreements between or with deputies or when someone wishes to resign as a deputy and other Court of Protection matters.
The law around deputies and people who have assets abroad
When you and someone you are deputy for live in different countries – or if someone you are deputy for has assets in different countries – it can cause complications.
This arises, for example, if someone who requires a deputy owns a home abroad.
We can support people to understand and deal with issues relating to deputyship across different nations.
Do contact us for advice. You may also find this guide useful: Deputyship – international aspects
Can a deputy change a will?
This will depend on whether the individual has capacity to make a Will or not. Just because a Deputy has been appointed to manage their financial affairs does not mean they will automatically also lack capacity to make a Will (testamentary capacity). It is possible to lack capacity to manage your financial affairs but to have capacity to make or change your Will.
A formal assessment of capacity to make or change the Will would be required. If that assessment confirms the individual has capacity to make / change a Will, they can do that for themselves in the same way any capacitated adult can.
If the capacity assessment confirms the individual lacks capacity to make / change their Will, an application to the Court of Protection would be required for a statutory Will. The new Will could only then be made if approved by an Order of the Court.
More deputyship information
Some of the following links may also be of help for those interested in deputyship and how Enable Law can help.
You may also find our guides useful:
- Client guide to deputyships
- The Coronavirus Act – what has changed for the mental capacity sector?
- Deputyship – international aspects
We are happy to answer your questions around deputyship directly, Please do get in touch.