When is a Deputyship Order needed?
There may come a time when a person with an illness or impairment does not have the mental ability to make significant decisions for themselves. This can occur due to a sudden accident or illness, such as a stroke, or during the later stages of dementia. They may therefore need someone else to make decisions on their behalf. It is always preferable to make a Lasting Power of Attorney, however sometimes this is too late. If a lasting power of attorney hasn't been made, then someone, usually a relative, can apply to the Court of Protection to take on this decision-making role by becoming a ‘Deputy’.
Once appointed by the Court, the deputy can manage the affairs of someone who lacks the mental capacity to manage their own affairs.
How do I apply for a Deputyship Order?
The process begins with an application to the Court of Protection. The application is generally made by post, therefore the deputy would not attend a court hearing, unless there are difficulties. The forms are long winded and detailed. They often take many hours to complete. And this only the beginning of the process. The must carry out tasks and has responsibilities that they are expected to continue in the future.
Can I be paid to be a Deputy?
Unless you are a professional deputy, you won’t be paid for the time you spend when acting as a deputy. You are, however, entitled to out of pocket expenses. Paid carers should not be deputies because this may result in a conflict of interest.
Are there different types of Deputyship Orders?
Yes, there are two types. A property and affairs deputyship, and a personal welfare deputyship. The property and affairs type is the most common form. Someone must apply to become the deputy to manage another person’s property and financial affairs (and they don’t already have a power of attorney in place).
If a person has no property or savings and their only income is benefits, there will usually be no need for a deputy to be appointed as benefits can be managed by an appointee.
A personal welfare deputyship is rare, and relates to the care of a person who lacks capacity and is generally appointed in the more extreme circumstances where no resolution can be reached in the best interests of the person.
How much does a Deputyship Order cost?
A court fee of £400 will need to be paid. This can be paid from the estate of the person who is unable to manage their affairs. If you pay this up front you can claim it back from the cash in their bank account once you have been made deputy.
The process is lengthy and the Court Order often takes at least 16 weeks to be issued.
There is also the cost of the Security Bond (see below), a supervision fee and possibly an assessment fee (if you are a first time deputy).
Do I have to obtain a Security Bond?
Yes. The court requires that all deputies for property and financial affairs obtain a bond, and we can help you with this. The bond is a type of insurance policy designed to financially protect the person in the unlikely event that the deputy mismanages their finances. The cost of the bond is dependent upon the funds that the deputy will have control of, including any property.
Guidance on arranging a bond is usually sent out once the court has made the order, and they will require you to set up the bond immediately. You may pay the bond from money you hold for the person, or pay from your own money and be reimbursed when you have access to the cash in their bank account. It is important to note that you will have to pay a yearly fee or premium for the bond, which can be paid from their bank account. This is very important and continues for as long as you are the deputy.
What are the duties of a Deputy?
Deputies have many tasks and responsibilities, such as:
- act with due care and skill (duty of care);
- not take advantage of the situation (fiduciary duty);
- protect the person against liability to third parties caused by the Deputy's negligence;
- not delegate your duties unless authorised to do so;
- act in good faith;
- respect the person's confidentiality; and
- comply with the directions of the Court of Protection.
If you are a deputy for property and affairs, you also have to:
- keep accounts; and
- keep the person's money and property separate from your own.
Who should I tell after a Deputyship Order is issued?
As the deputy you must inform:
- the Department for Work and Pensions for pension;
- the local authority for housing benefit or assistance with fees;
- banks or building societies;
- private pension;
- solicitor who holds the person's will and property deeds; and
- nursing home where the person resides.
It is also a good idea to inform other people involved in the person's care, and friends and relatives.
What are the limits to my powers as a Deputy?
The Deputy has no authority to:
- restrain the person;
- make a decision for the person if they can make decisions themselves;
- go against a decision made under an existing power of attorney; and
- refuse life-sustaining treatment for a person who lacks capacity to consent.
The court can cancel the deputy's appointment if it decides the appointment is no longer in the best interests of the person.
How is a Deputy supervised by the Court of Protection?
The Office of the Public Guardian (‘OPG’) protects anyone who lacks the capacity to make decisions. The Court of Protection and the OPG are essentially the same institution; the Court makes the decisions and the OPG attends to all the administration.
- Supervises Deputies;
- Provides evidence to the Court of Protection; and
- Offers information to the public.
There are two different levels of supervision:
General - all Deputies are placed under general supervision in the first year because they need more support and guidance and
Minimal - if the assets of the person with dementia are below £21,000 and there are no concerns about the Deputy, the supervision will be minimal.
A supervision fee must be paid annually. The amount will depend upon the type of supervision.
Does the Office of the Public Guardian offer support?
The OPG is also there to support people in their role as a Deputy. The OPG services include:
- Phone call within the first few months – to express any concerns you have, and ask any questions;
- Visits – you can request a visit to assist you in your role as deputy;
- Case worker – deputies with a higher level of supervision have an allocated case worker; and
- Contact centre - The OPG has a contact centre that all deputies can contact to ask questions.
As a deputy you will have to provide an annual deputyship report to the court which provides a summary accounts for the court to approve. You must detail the financial transactions of the previous year with evidence, such as bank statements.
Can I apply for an emergency application?
If there is a clear risk that someone may suffer serious loss or harm, then you can make an emergency application. This is only if a decision is required within 24 hours for:
- urgent medical treatment;
- preventing someone being removed from their home; and
- to execute a statutory will or important financial transaction where the person's life expectancy is very short.
Can a Deputy give gifts on behalf of a relative?
The provisions of the order must be checked and gifts are limited:
- The finances of the person will be taken into account. A deputy would not be able to make a gift that would severely affect the person's finances and ability to pay for care;
- Previous actions by the person should be considered. For example, if they have always given family members gifts for their birthdays, this can continue;
- If the person with dementia still has capacity to decide for themselves who they wish to give gifts to, their wishes should be followed by a deputy. This is unless the gift would jeopardise the person's finances, for example giving so much away they are not leaving themselves with enough; and
- If a deputy is unsure whether they can make a gift, or they are looking at making a large gift, they can refer to the OPG for guidance. In some circumstances, an application may need to be made by the Court of Protection to make the final decision.
If you are a Deputy, can you live in the house of the person who is incapable of managing their affairs?
You will require the permission of the court, as to do so may be a conflict of interests.
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London WC1A 9JA
The Court of Protection makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.
Office of the Public Guardian
PO Box 16185
Birmingham B2 2WH
The OPG supervises deputies, and are able to provide deputies with guidance and support.