Sadly, not all of our clients are able to make the important decisions that are sometimes required in day to day life. In these circumstances, our Court of Protection Solicitors can help family and loved ones act in their best interests.
The Court of Protection is able to appoint a Deputy for a person without capacity to make decisions on financial or welfare matters on their behalf. It can also make specific decisions itself relating to the care, health or finances of the individual and in emergencies when needed.
Also, the Court of Protection will consider applications for statutory Wills and gifts and resolve disputes between those involved with a person’s care.
How we can help:
This is a complex area of the law and our specialist Court of Protection or Deputyship Solicitors, are experienced in all matters relating to the Court of Protection and can help with several situations:
- If you are responsible for someone else’s affairs
- If you are concerned about someone’s ability to manage your affairs
- If you are concerned about the ability of someone to manage another’s affairs
- If there is a dispute about someone’s ability to make their own decisions
- If there is a dispute about the care or medical treatment that is in someone’s best interests
If you have the responsibility of managing the affairs of a loved one, we can support you with legal advice, information, and representation.
Our Court of Protection Solicitors also have experience in Personal Injury and Medical Negligence cases where the subsequent loss of mental capacity has taken place. For long-term conditions, we can provide legal advice and preparation of Lasting Powers of Attorney, in addition to assisting with resolving any disputes over Lasting Powers of Attorney or the nominated deputies.
What is a lack of mental capacity?
This means the inability to make decisions or choices due to illness or disability. This can include being unable to understand or retain information, use that information to make a decision or even communicate that decision to others.
What is a Deputy?
A Deputy is appointed by the Court of Protection to manage the affairs of another person who no longer has the mental capacity to do so for themselves. The Deputy’s powers are set by the Court Order. If the person lacking mental capacity already has a valid Power of Attorney in place, then a Deputy is not required.
What is the difference between Lasting Power of Attorney and Deputyship?
Deputyship and Lasting Power of Attorney are the same in that a person is appointed to make decisions for someone without the mental capacity to do so. The difference, however, is:
Lasting Power of Attorney is made by the person themselves before they lose mental capacity.
Deputyship is applied for by a third party after a person has lost metal capacity.
This, therefore, means that a person has more control over their own wishes with a Lasting Power of Attorney.
Why would I need to set up a Deputyship?
Deputyship may be needed when someone loses mental capacity and is unable to make decisions about their welfare or finances, and there is no Attorney in place already.
Loss of capacity can be due to brain injury or illnesses such as dementia. Some of the decisions that need to be made are:
- Collecting income or benefits
- Selling assets for care home fees
- Managing an award of compensation
- Making decisions on medical treatment and living arrangements
What types of Deputyship are there?
In much the same way as a Lasting Power of Attorney, a Deputyship can be appointed to manage two different aspects:
Property and Affairs – this includes making decisions about financial and property affairs, including sale and/or purchase
Personal welfare – this includes making decisions about health and welfare, including medical treatment options. Please note that a Deputy cannot refuse consent for life-sustaining treatment.
Can anyone be a Deputy?
A Deputy must be over the age of 18 and will be required to declare any criminal convictions or bankruptcy arrangements upon application to the Court of Protection. A Deputy is often a spouse, partner, or another close relative. Still, if there is no one able or willing to be a Deputy, this role can be taken by the local authority or a professional such as a Solicitor. If the person has a large or complicated estate, it is advisable for a professional to be appointed to manage decisions.
Are Deputies supervised? If so, how?
When a Deputyship Order is put in place, the Office of the Public Guardian allocates it with a level of supervision. This can range from a low level of supervision (usually for simple cases) to a high or close level of supervision, usually used for new cases. Depending on the level of supervision, the Deputy will be required to report on their activities as often as advised.
Can a Deputyship be terminated?
Yes, a Deputyship will be terminated when the person either passes away or regains their mental capacity. It can also be terminated by an Order of the Court of Protection, should the Deputy wish to resign or retire.
Here to help
At Simper Law we are able to assist clients in making the above applications and preparing the lengthy paperwork that is involved.
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