The four main stages of applying for a deputyship order:
To apply for a deputyship:
- You must complete and send your application to the Court of Protection (COP) with the application fee. Your application form must include an assessment of mental capacity which must be completed by a medical practitioner or social worker. These forms include information on why they lack capacity and their quality of life(if from birth, an accident that caused a brain injury, or a disease like dementia).
- You must serve a notice on the following people during the application process:
- The person who lacks mental capacity and who you are applying to be a deputy for.
- Three or more people who you have named in the application as having an interest in the matter (usually family or friends of the person to whom the application relates).
- You must confirm to the Court of Protection that you have served the above notices.
- The Court of Protection will then contact you to confirm the following:
- If your application has been approved.
- If you need to set up a security bond.
- If you need to provide more information.
- If there is going to be a hearing (there is usually no hearing regarding an application to become a property and financial affairs deputy).
It takes the Court of Protection about six months from the start of the application to issue a deputyship order and that is only if there are no problems during the application process (such as the Court asking the applicant to provide further information).
Remember, you do not need to apply for a deputyship if there is a Lasting Power of Attorney in place. The LPA process is quicker and cheaper, so where possible we always recommend a Lasting Power of Attorney over a Deputyship.
If you are not successful in your application, you can appeal.
Bear in mind that not only does the Court want to know about the person who you are becoming deputy for – they will also want to know about your background and if you are appropriate deputy material. So you will have to disclose information about your financial status, criminal record, employment, etc so they can vet you. This is part of the safeguarding process the Court engages in to protect vulnerable people who lack mental capacity to whom the deputyship applications relate and make sure the people applying to be deputies are suitable, capable and trustworthy as they will have legal liability.
What happens after you are appointed as a deputy?
If you are appointed as a deputy, you will be sent a court order and official copies which detail what you can and cannot do.
Before you get the order, you have to pay for a deputy bond. This can be a one-off premium or an annual premium. This insures the assets of the person you are deputy for in case you do not manage their finances properly.
You will need to send the official copies of the Order and your ID to the institutions and organisations which the person who you are deputy for is connected with, and keep accounts in preparation for the annual report.
What needs to be included in an annual report?
An annual report must be sent to the Office of the Public Guardian (OPG) with the following information included:
- The person’s finances – what are their assets, liabilities and income as at the date of the report.
- The decisions you have made for the person who you are deputy for during the year and any you plan on making in the future.
- The reasons for your past and future decisions.
- How the decisions are in the person’s best interests.
- Any advice you sought before making the decision and from whom.
Is there any supervision of deputies?
The Office of the Public Guardian is authorised to supervise deputies, and provide advice and support. Within the first year of being a deputy, you will get a ‘general’ level of supervision. After a year, this may be reduced to ‘minimal’ supervision if:
- You are a property and financial affairs deputy.
- You are managing less than £21,000.
- The Office of the Public Guardian considers that you no longer need general supervision.
What accounts are deputies expected to keep?
A deputy must keep clear accounts and keep copies of:
- Bank statements.
- Correspondence relating to your role and activity as a deputy.
- Payment records.
What expenses can a deputy claim?
A deputy can only claim expenses for any fees that must be paid in order to carry out their responsibilities (i.e. payment of travel costs, postage etc.). A deputy cannot claim expenses for their time spent acting as a deputy (unless they are a professional deputy such as a solicitor) or for costs incurred from social visits.
Professional deputies’ fees are paid from the assets of the person who they are deputy for. They are either fixed costs set by the Court of Protection Rules or, if they are based on an hourly rate, their payment is assessed by the Senior Courts Costs Office on an annual basis. If their fees are fixed or hourly is dependent on the means and assets of the person who they are deputy for.
Can a deputy make gifts?
If you are able to make gifts on behalf of the person you are deputy for, this will be stated in the court order. The court order may place an annual limit on the amount and size of gifts which a deputy can make and all gifts must be reasonable. If a deputy wants to make a one-off large gift then they must apply for permission from the Court of Protection.
Can a deputy buy or sell property?
If you want to do this for the person who you want to become deputy for, you must apply to this effect in the initial application process. You will have to explain why you want to do this. You may not always be granted this permission. However, you can make further applications to sell their property as their deputy in the future if necessary.
Health & Welfare deputyships
Most deputyships granted by the Court of Protection are for Property & Financial Affairs. As you will see from the above, the advice largely relates to someone’s finances being managed by a deputy (although the processes of application and annual reports are similar for both types of deputyship). Health & Welfare deputyships are rarely granted for someone who lacks mental capacity and the Court takes the view that daily decisions for their health, including medication and care should be taken by their family, GP, hospital consultant and social work professionals together, with no one person like a deputy having the final say. The Court will consider separate applications for a one-off decision to be made regarding the health and care of a vulnerable person where the people involved in caring for them (personal and professional) cannot agree.
Need help applying?
As the application is basically a Court procedure, it is daunting. It can really help to have a solicitor advise you, make the application for you and guide you through the process. A good initial application could save you a lot of time and avoid queries from the Court, which could mean it takes even longer than six months to get the Order. In that time, you will not be able to legally assist the person you are applying to be deputy for and problems may accrue so the sooner you have the right to act for them, the better.
NB: timescales and fees are subject to change – please ask for details.