Acting as a Deputy and What this Means

It is a commonly accepted truth that prevention is better than cure. In this context, acting as deputy, one could argue, one is left with the ‘cure’, as ‘prevention’ is no longer an option. What we mean by this is that each individual should, while they have their faculties, consider preparing a Lasting Power of Attorney, in which they choose a person or persons whom are trustworthy, to act for them in terms of handling their property and finances when they may no longer be able to.

However, when a Power of Attorney is not in place, and the individual has become mentally incapable, the only route generally available to the relatives is to apply to the Court of Protection for authority to act on that individual’s behalf, with the court’s consent and continued monitoring, this is called a Deputyship application. It is also possible to have an Appointee appointment to merely be the recipient of the individual’s state benefits.

The Court of Protection

The Court of Protection is there first and foremost to safeguard vulnerable individuals from financial abuse. Consequently, the paperwork required to be submitted to the court to commence an application is more detailed than that of a Power of Attorney application, comprising, among other things, the proposed deputy’s own personal declaration to the court that they will make a good candidate for deputy and will act at all times in that individual’s best interest. The application will also contain a form completed by a medical practitioner confirming that indeed the individual does lack mental capacity, this is a cornerstone element of the application as this establishes the court’s jurisdiction to become involved in the first instance and then consider the merits of the application, on behalf of the incapable individual.

The Court of Protection process can be lengthy and, in my experience, applications can seldom be expedited merely on the basis of financial hardship, i.e. bills need paying on behalf of the individual.

The Court of Protection process is, however, available to lay individuals and professionals, alike. Once commenced, one could say the Court of Protection becomes the three ‘Os’; omnipresent, omnipotent and omniscient. Once an application has been successful with the court, in that the court grants an Order to the proposed deputy, within the Order there are limits imposed on the deputy’s powers.

Deputyship application

Yes, they will have general authority granted to them to handle finances etc. and indeed make gifts to charities and/or family members in keeping with what that individual would have done while capable. But no more power or greater authority beyond that, so, for example if the deputy wishes to undertake estate planning advice with a view to changing the makeup of the individual’s assets or indeed it is necessary at some point to sell property belonging to the individual, as perhaps full time residential or nursing care is needed, these actions cannot be taken without the court’s consent and this may warrant an additional application to be submitted to the court, meaning the deputy is then further beholden to the court and any new Order made.

Once a deputy is handling the property and financial affairs on behalf of the incapable individual, they are required, yearly, to submit accounts to the court evidencing what they have done on the individual’s behalf with their finances. The detail and depth of the accounts to be submitted depends on the level of wealth in that individual’s estate.

Needless to say, granting a Power of Attorney, now, in which you are taking control over a possible event in the future when you may not have control, to choose your proposed person or persons to act for you, is highly preferable, and is indeed the best preventative measure.

Frequently Asked Questions

What is a Deputy?

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who no longer has the mental capacity to manage their own property and financial affairs. Deputies act under the court’s authority and must always act in the individual’s best interests.

How is a Deputy different from an Attorney under a Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is arranged before someone loses mental capacity, allowing them to choose who will act for them. A Deputy is appointed after the person has already lost capacity and only through a Court of Protection application.

Who can apply to be a Deputy?

Relatives, close friends, and professionals (such as solicitors) can apply. The Court checks whether the applicant is suitable and trustworthy.

What powers does a Deputy have?

With a court order, a deputy may:

• Manage bank accounts, savings, and investments
• Pay bills and ongoing financial commitments
• Manage property, including maintenance and insurance
• Make reasonable gifts in line with what the person would have done. They cannot take actions outside the court’s authority, e.g., major estate planning or selling property, without further approval.

How long does a Deputyship application take?

The process often takes 4-6 months, sometimes longer. there is, however, scope for urgent orders to be made, in certain circumstances.

Example Scenarios

Example A

When Deputyship is needed

Mary, aged 82, develops advanced dementia. She never prepared a Lasting Power of Attorney. Her daughter urgently needs access to her finances to pay care home fees and manage her bills. Because Mary now lacks the capacity to make a Lasting Power of Attorney, her daughter must apply to the Court of Protection to become her deputy.

Example B

Why prevention is better

Alan is in good health and creates LPAs appointing his daughter as his attorney. Years later, after a stroke, she can immediately begin managing his banking, pay bills, and make arrangements without needing a deputyship order, avoiding delays.