Seeing a loved one lose mental capacity and be unable to make decisions for themselves can be an incredibly distressing experience. In addition to the emotional impact, your loved one’s loss of capacity raises a number of legal and practical issues, including how their affairs will be managed. If your loved one did not set up a Lasting Power of Attorney when they had the capacity to do so, the Court of Protection may make a Court of Protection Deputyship Order giving specific individuals the power to take over control of your loved one’s affairs.
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When Might You Need A Court Of Protection Deputyship?
The legal test for determining whether a person lacks mental capacity is set out in a statute called the Mental Capacity Act 2005. The Act states that every adult is presumed to have mental capacity unless the contrary is proven. Making unwise choices does not, of itself, mean that someone lacks capacity.
To assess whether someone has capacity, those carrying out the assessment should consider:
- Whether the person has an impairment of the mind or brain. The impairment might be permanent, such as a learning disability, or temporary, such as intoxication.
- Whether the impairment means that the person is unable to make the decision in question. A person will be considered to be unable to make a decision if they cannot:
- Understand the information relevant to the decision.
- Retain the information for as long as it takes for them to make the decision.
- Communicate their decision by any means, including speech, writing, or other non-verbal communication.
Crucially, merely living with a condition such as dementia that affects the mind, does not automatically mean that the person is unable to make decisions for themselves. Only if that condition means that the person does not satisfy the test set out above will they be deemed to lack capacity. Furthermore, capacity is decision-specific. This means that a person may have capacity to make simple decisions, such as what they would like to eat, but be unable to make more complex ones, like those relating to their financial affairs. A person’s capacity may fluctuate over time.
What Is A Court Of Protection Deputyship Order
A Court of Protection Deputyship Order is a formal court order appointing an individual, known as a deputy, to make decisions on behalf of someone who lacks capacity to make decisions for themselves. Deputies are often family members or close friends of the person who lacks capacity, although professional deputies, such as solicitors, may be appointed if there is no suitable family member or friend to take on the role.
There are two main types of Court of Protection Deputyship Orders, as follows:
- A Property and Financial Affairs Deputyship Order, which permits the deputy to manage the vulnerable person’s money and financial affairs. This might include paying their bills, handling their pensions or benefits, and dealing with any property the person owns.
- A Health and Welfare Deputyship Order, which allows the deputy to make decisions relating to the vulnerable person’s healthcare and personal welfare. Health and Welfare Deputyship Orders are less common than Property and Financial Affairs Deputyship Orders.
What Are A Deputy’s Duties Under A Court of Protection Deputyship Order?
Once appointed, a deputy is subject to a wide range of legal duties. Their conduct is supervised by the Office of the Public Guardian to prevent them from misusing their powers.
For example, a deputy is legally obliged to act in the best interests of the person who has lost capacity. They must maintain proper accounts and records, such as those relating to how they have spent the vulnerable individual’s money or managed their property. Deputies must submit an annual report to the Office of the Public Guardian detailing their decisions.
How Can We Help With Court Of Protection Deputyship Orders?
At Simper Law, Court of Protection work is central to our legal practice. Our expert solicitors routinely support the families and friends of people who have lost capacity, advising them on whether they need to apply for a Court of Protection Deputyship Order and, if so, guiding them through the application process from start to finish. Once appointed, we support deputies in fulfilling their legal duties and assist them in addressing and resolving any issues that may arise. Our goal is to help our clients navigate the Court of Protection processes with confidence and to provide peace of mind that their loved one’s best interests are fully protected.
Please call us now on 01603 672222 for a no-obligation conversation today or Click Here To Make An Online Enquiry.
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