When someone becomes unable to manage their own affairs and they have not put a Lasting Power of Attorney in place, a relative or other representative can apply for a deputyship order allowing them to act on the person’s behalf.
The application is made to the Court of Protection. A deputyship order can be made in respect of someone’s property and financial affairs or their personal welfare.
The Court will usually only issue a personal welfare deputyship order if there is a specific matter that needs to be dealt with over time, such as where someone will live, or where there are doubts as to whether someone’s best interests will be given enough weight, for example, if a family disagreement has arisen. The order will detail what powers are being given to the deputy.
Making an application for a deputyship order
The Court of Protection will need an assessment of capacity form completed by someone who is able to confirm that the person needs help managing their affairs, such as their GP or social worker. You will also need to give the Court the names of three people who know the person for whom you want to be deputy. This could be relatives, their GP or social worker.
You are required to visit the person in question and explain to them that you are making the application and why, and also tell them where they can obtain advice about what is happening. There are forms to serve on them and also on the three people you have named in the application, who should also be notified of the proceedings.
A deputy’s duties
A deputy must adhere to a high standard of care and act in the person’s best interests at all times.
People have the right to make their own decisions if they can, even if the decisions are not considered to be wise. They must also be given help to manage their own affairs if this is needed and will allow them to deal with matters themselves.
Restrictions of their rights must be as minimal as possible. A will or trust cannot be made on their behalf and a deputy cannot decide who someone can and cannot see. A deputy cannot refuse life-sustaining medical treatment on behalf of the person they are helping.
Making a Lasting Power of Attorney
There are considerable benefits to putting a Lasting Power of Attorney (LPA) in place instead. This has to be done while someone still has mental capacity. They can choose one or more attorneys to deal with their affairs, should the time come when they are unable to manage this themselves.
An LPA can be put in place in respect of property and financial affairs and/or health and wellbeing. The property and financial affairs LPA can be used before someone loses mental capacity, for example, if they are unable to go the bank themselves. A health and wellbeing LPA can only be used after someone has lost the ability to make their own decisions.
An LPA can be registered quickly and easily with the Court of Protection. Obtaining a deputyship order can take substantially longer, which can cause difficulties if no-one is able to pay bills or deal with matters on behalf of someone in need. A deputy must also send a deputy report to the Court of Protection every year.