Navigating Deputyship Applications and the Court of Protection

When individuals lose the capacity to make decisions for themselves, the appointment of a deputy becomes essential to safeguard their interests. This process, governed by the Mental Capacity Act 2005 in the United Kingdom, involves a meticulous application to the Court of Protection.

The Solicitors for the Elderly (SFE) provide support for such applications made relating to the elderly and assist to ensure Solicitors are focusing on the welfare of vulnerable individuals.

Understanding Deputyship

Deputyship is a legal arrangement that allows a designated individual, known as the deputy, to make decisions on behalf of someone who lacks the mental capacity to do so themselves. The deputy is typically a family member or a close friend, but in some cases, a professional may be appointed.

Types of Deputyship

There are two main types of deputyship:

  1. Property and Financial Affairs Deputyship:

This type of deputyship allows the deputy to make decisions regarding the person’s financial matters, including managing bank accounts, paying bills, and handling property-related issues. The person who has lost capacity may require their home to be sold for purposes such as paying for care costs, and an application to the Court of Protection can be made to sell such property, however a person who is appointed as a Deputy for Property and Financial Affairs does not automatically receive authority to sell the property.

  1. Personal Welfare Deputyship:

A personal welfare deputy is granted authority to make decisions related to the individual’s healthcare, living arrangements, and other personal matters. This can be things as simple as a weekly hair cut that the person has always had or the diet of food they are eating, for example have they always been a vegetarian? If so, they should be able to continue doing so and a Deputy is appointed to ensure the persons general wellbeing is being taken care of.

Deputyship Application Process

Initiating a deputyship application involves several key steps of which we can assist with:

  1. Capacity Assessment:

A capacity assessment is conducted to determine whether the individual lacks the mental capacity to make decisions. This assessment is often carried out by medical professionals or social workers.

  1. Deputyship Forms:

The prospective deputy must complete the relevant deputyship application forms, which include details about the individual’s finances, family, and the specific decisions the deputy will be authorized to make.

  1. Notifying Interested Parties:

The Court of Protection requires the applicant to notify certain individuals, such as close relatives, of the deputyship application. This ensures transparency and allows interested parties to express their views on the appointment.

  1. Court of Protection Application:

The completed forms, along with any supporting documentation, are submitted to the Court of Protection. The court will review the application to ensure it meets all legal requirements.

Role of the Court of Protection

The Court of Protection plays a crucial role in overseeing deputyship applications. Its responsibilities include the decision making as to whether to Grant such deputyship and also whether to impose any conditions or restrictions on the deputy’s authority.

The court’s primary concern is the best interests of the individual lacking capacity. It ensures that the deputy acts in the person’s best interests and does not exploit the situation. Once appointed, the deputy is accountable to the Court of Protection. Regular reports and accounts must be submitted to ensure transparency and accountability.

Solicitors for the Elderly (SFE)

Solicitors for the Elderly is a professional association of solicitors, barristers, and legal executives who specialize in providing legal services to the elderly. With a focus on the complex and sensitive nature of issues related to aging and incapacity, SFE members are well-versed in the nuances of deputyship applications. In the intricate process of deputyship applications and engagements with the Court of Protection, having a knowledgeable and experienced legal partner is invaluable. SFE members understand the importance of a comprehensive capacity assessment, meticulous completion of application forms, and adherence to the legal requirements outlined by the Court of Protection.

It is important to obtain sound legal advice for individuals who may require a deputyship application, and for those who are now unable to enter into a Lasting Power of Attorney. If you would like assistance with making a Deputyship Application, we would be delighted to assist you with this. Please contact us to speak to a member of our Private Wealth & Inheritance team.

Graeme Black
Partner, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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