Holly Rogalski – trainee solicitor in our Private Client department – discusses what you can do when a loved one is no longer able to make their own decisions

Each day we make hundreds, if not thousands of decisions for ourselves. These range from smaller decisions, such as what to wear, to more important decisions, like how to invest our savings. The ability to make decisions for yourself is known as ‘capacity’. In law, a person is assumed to have capacity unless it is established that he/she lacks it. For this reason, someone might be deemed to have capacity at certain times, whereas at other times they may not. Similarly, a person may have the capacity to make certain decisions regarding their day to day life but may lack the ability to make more important decisions. People can lack capacity due to dementia, a brain injury or illness or learning difficulties.

Applying to become a Deputy

If a person loses capacity someone may need to make decisions on their behalf. If the person who lacks capacity does not have a valid Lasting Power of Attorney or Enduring Power of Attorney in place, someone will have to apply to the Court of Protection in order to become their Deputy. The Court of Protection is a specialised court which helps people who are no longer able to make their own decisions. It can be called on to make decisions on behalf of someone who lacks capacity in relation to their money, property, health or welfare. However, sometimes family members or friends need to be able to make decisions on behalf of a loved one on a more regular basis; for example, they may need to manage their savings, organise their pension or arrange for the payment of their care fees. In circumstances such as this, the Court of Protection could appoint a Deputy to make these decisions on an ongoing basis. Anyone can apply to be a Deputy provided that they are over eighteen years old and have the ability to make decisions on behalf of someone else. It is not only relatives who can apply to become a Deputy; friends, neighbours or a professional representative, such as a solicitor or accountant, can apply too. The most important consideration is that the person appointed as Deputy must make decisions which are in the best interests of the person lacking capacity.

The Court of Protection is able to appoint two different types of Deputies; a Deputy in relation to someone’s property and financial affairs and a Deputy in relation to someone’s personal welfare. A property and financial affairs Deputy is able to make decisions relating to their loved one’s finances, such as arranging for their bills to be paid or organising their pensions. The Court of Protection can also order that a Deputy has the power to arrange for a property to be sold if funds are needed to cover a loved one’s care fees.  Alternatively, a personal welfare Deputy is able to make decisions relating to medical treatment and care arrangements. However, due to the significance of these decisions, the Court of Protection is reluctant to appoint personal welfare Deputies and will only do so in very limited circumstances.

There are several stages to the application process and the whole process can often take several months to complete. The first step is to ask a medical professional to undertake an assessment to confirm that the person does in fact lack capacity.In order to protect the person who lacks capacity, certain interested parties, such as other relatives, must be informed that a deputyship application is being made.

 

Supervision

Understandably, given the nature of the decisions which they are permitted to make, Deputies are closely supervised by the Office of the Public Guardian which is the administrative arm of the Court of Protection. Deputies are required to produce annual reports explaining the decisions that they have made as a Deputy and can be visited by a Court of Protection visitor to ensure that they are carrying out their duties properly.

Please contact us if you would like to apply to become a Deputy and we will be happy to assist you with the application process.

In order to ensure that your loved ones will be able to deal with your affairs without having to go through the lengthy process of being your Deputy, we advise making Lasting Powers of Attorney while you have capacity to do so.

A Lasting Power of Attorney is a legal document that allows you to appoint an attorney or attorneys to make decisions on your behalf. There are two types of Lasting Power of Attorney; one which relates to your property and financial affairs and one which relates to your health and personal welfare. Lasting Powers of Attorney tend to be less costly than applying for deputyship and the process is usually much quicker. However, the main advantage to making a Lasting Power of Attorney is that you choose who will deal with your affairs on your behalf rather than having the court appoint someone who you have not chosen. For more information on making Lasting Powers of Attorney please see our factsheet.

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