In this article, our Nilufer Ozdemir looks at the top five things you need to know about deputyship
Should an unfortunate event happen and a loved one loses capacity to make decisions for themselves and there is no lasting power of attorney in existence, you will not automatically have the power to make decisions on their behalf. Fortunately, there is a way to subsequently obtain that authority: you can apply to be appointed as your loved one’s deputy.
What is the difference between deputyship and lasting power of attorney?
A deputyship may be required if an individual no longer has capacity to make a lasting power of attorney. A lasting power of attorney is a document giving the chosen attorney the power to make decisions on behalf of another should they later lack capacity to do so. It differs from deputyship because for a lasting power of attorney, the power to make decisions derives from the document itself whereas with deputyship, the power derives from a court order.
A deputy is someone appointed by the court to make decisions on behalf of another person who lacks mental capacity to make the relevant decisions. For the purposes of this article, we will refer to the individual who lacks mental capacity to make the relevant decisions as ‘P’.
An individual may lack capacity to make decisions if for example, they have a condition such as dementia, serious brain injury or severe learning disabilities.
A deputy must only make decisions on P’s behalf if P lacks capacity in relation to that particular issue and in doing so, they must act in P’s best interests. Acting in P’s best interests includes taking steps such as consulting relevant individuals involved in P’s life and ascertaining P’s wishes and feelings. Although the deputy does not necessarily have to follow P’s wishes, he/she must consider P’s wishes and feelings to determine whether the decision would be in P’s best interests.
It should be borne in mind that a deputyship order is more likely to be specific to the circumstances and the only way to know exactly what authority the deputy has, is to look at the court order.
There may be a sole deputy, or there may be more than one deputy acting jointly or jointly and severally which means deputies can make decisions on their own or jointly with other deputies.
There are two types of deputyships
A deputy may be appointed to make decisions about P’s property and financial affairs and/or health and welfare. If you want to apply for both, you will need to make two separate applications.
Property and Financial Affairs
To begin with the role of a deputy appointed to make decisions on behalf of P about P’s property and financial affairs, the authority of a deputy will be limited to the powers granted to them by the court order. For example, the court order may grant the deputy the power to manage P’s rental income but no power to sell P’s property, unless this is expressly stated in the court order. When applying to become a deputy, you should therefore ensure that the powers sought on behalf of P are expressly stated in the court order.
A property and affairs deputy can usually make decisions around the following issues:
- Paying bills
- Investing money
- Managing welfare benefits
- Making purchases
- Making gifts
A property and affairs deputy usually cannot (without specific authority from the court)
- Terminate a tenancy agreement
- Sell a property
- Make a will
- Set up a trust
- Apply for a grant of probate/letters of administration
- Sign a deed of variation
Property and affairs deputies cannot make health and welfare decisions unless they have authority to do so by becoming P’s deputy for health and welfare matters too. Sometimes there is a cross-over of issues, for example, a deputy for property and financial affairs may be consulted as to whether they would be willing to authorise funding of a proposed care package for P.
Health and Welfare
As with deputyship for property and affairs, a health and welfare deputy can only act where P lacks capacity to make decisions regarding health and welfare. Again, as with property and financial affairs deputyship, the deputy for health and welfare is required to make decisions in P’s best interests.
Similarly, there are some limitations to the authority of a health and welfare deputy once they have been appointed.
A health and welfare deputy can usually make decisions about P’s:
- Care arrangements
- Medical treatment
A health and welfare deputy usually cannot make decisions about:
- Life-saving treatment
- What contact P should have with others
If the deputy has been appointed to make decisions on behalf of P’s health and welfare only, they cannot make property and affairs decisions on behalf of P.
Decisions deputies cannot make for P
There are some very personal decisions that no one can make for the P. Whether a deputy has authority to manage P’s property and financial affairs and/or to make decisions about health and welfare, a deputy cannot:
- Stop treatment aimed at keeping P alive (‘life-sustaining treatment’)
- Decide who P marries or divorces
- Prevent P from having contact with people
- Decide who P votes for in a public election
Why are health and welfare deputyships much rarer?
A health and welfare deputyship is a useful authority to make decisions on behalf of another. However, a deputyship for health and welfare is much rarer. This is because the relevant legal guidance states that deputies are most likely to be needed for financial matters where someone needs continued authority to make decisions about P’s money or other assets. The court cannot make each and every financial decision that arises for P whereas in health and welfare cases, there are usually more major decisions to be made on behalf of P or, there may be a serious dispute about P’s welfare so that the court should be asked to make that decision.
For health and welfare decisions, it will be easier for the courts to make decisions in cases where a one-off decision is needed about P’s welfare. But there will be occasions where ongoing decisions about a person’s welfare will be required. For example, seeking ongoing authority from the court to be able to access information relating to P to be kept informed of P’s welfare. The courts can therefore limit the powers of a health and welfare deputy by narrowing down the scope of that appointment.
Examples of when a health and welfare deputyship would be appropriate include considerations such as whether:
- Someone needs to make a series of linked welfare decisions over time and it would not be beneficial or appropriate to require all of those decisions to be made by the court.
- The most appropriate way to act in P’s best interests is to have a deputy, who will consult relevant people but have the final authority to make decisions.
How to apply to become P’s deputy
An application must be made to the Court of Protection to apply to become P’s deputy for property and financial affairs or health and welfare, or both.
In order to support your application, the court will require evidence confirming that P lacks capacity to make the relevant decisions and sufficient evidence as to why a deputy should be appointed on behalf of P. Notification of this application will be sent to those who may be interested in P’s case and if no objection is raised to the application, it will proceed smoothly. The court may request further information from the individual applying to become P’s deputy, for example, if there is insufficient evidence of P’s capacity, the applicant may need to obtain further information and submit this to the court.
Becoming a deputy can be a costly exercise. A deputy must pay:
- a fee to apply to be a deputy (currently £371 for each deputyship application plus £494 if the court decides that your application needs a hearing). A deputy may be exempt from paying an application fee depending on what type of deputyship they are applying for and how much money P has. You can claim back the fee from the funds of P if you’re applying to be a property and affairs deputy.
- a supervision fee every year after the deputy has been appointed.
- a £100 assessment fee if you’re a new deputy.
After the deputy has been appointed, the following fees will also be payable:
- £320 for general supervision
- £35 for minimal supervision – this applies to some property and affairs deputies managing less than £21,000
For a property and affairs deputy, you may also have to pay to set up a ‘security bond’ before you can be appointed. The deputy will set up the bond with a security bond provider and the amount payable depends on:
- the value of the estate of the person you’re a deputy for
- how much of their estate you control
Deputyship is not a straightforward process and often requires the assistance of a legal expert. Our team at TV Edwards can help you make the application. Please contact us on 0203 440 8000 to speak to our Social Welfare and Court of Protection specialists.