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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.
There are two types of deputy; a deputy for property and financial affairs and a deputy for health and welfare. A deputy can be a friend, family member or a professional.
WE WERE APPOINTED TO ACT AS DIANNE'S FINANCIAL DEPUTY AND WORKED WITH THE TEAM MANAGING HER CLINICAL NEGLIGENCE CASE UNTIL IT WAS SETTLED.
Dianne is a lady in her 30’s 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 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 the deputy 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 house specifically adapted for her needs, and also have her investment in the house protected, which was in her best interests.
All names have been changed to protect the identities of the individuals
Who needs a Deputy?
Many of our deputyship clients are children or young people who have suffered an injury at birth. We also represent a large number of people with learning difficulties and elderly people, who have lost capacity as a result of a stroke or dementia.
Roles and responsibilities of a Deputy
Where someone lacks the capacity to manage their own affairs then an application to the Court of Protection will need to be made for a Deputy to be appointed. The role of a Deputy is to manage their affairs for them. That Deputy can either be lay (for example a family member) or professional (for example a Solicitor).
Even though someone has been assessed by a medical expert as lacking the capacity to manage their own affairs the Deputy will still work closely with them and provide all practicable assistance and support to help them make their own decisions. In the event that is not possible the Deputy will need to make whatever decisions are necessary and are in the best interests of that person. Just because someone has been assessed as lacking capacity does not mean they should be treated as being unable to make any decisions.
To find out more, visit our dedicated guide.
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 attorneys, 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 they need to during the course of their appointment. If a Deputy needs to do something that is not covered by the Order then it will be necessary to apply 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.