If an individual loses the capacity to manage their own affairs and make important decisions and they have not legally appointed someone to act as their attorney, it may be necessary to apply to the Court of Protection for a deputyship order.
When someone is no longer able to cope with day-to-day life, either in respect of their financial matters or in relation to their care or both, then someone will need to step in on their behalf to help out. It is a common belief that a spouse or close relative can simply take over, however this is not the case. Whoever takes on the role will need proper legal authority to act. Without this, it may not be possible to carry out financial transactions or make decisions about medical treatment or healthcare.
If the individual concerned has become unable to manage, there could be a difficult time period during which no-one has the authority to deal with issues on their behalf. This can cause problems if bills need to be paid or decisions have to be made about care, such as where the person will live and what will happen to their home.
The Court of Protection
The Court of Protection is responsible for looking after those who cannot deal with their own affairs and who have not legally appointed an attorney to act on their behalf. It can make a decision as to whether an individual has the mental capacity to act and where they do not, it can appoint a deputy to represent that person.
The Court can also give permission for people to make one-off decisions on someone else’s behalf. This includes consent for the sale of someone’s property.
Applying to become a Court of Protection deputy
If a loved one needs help managing their affairs because they no longer have the mental capacity to do so, you can apply to the Court of Protection to become a deputy. This will give you the legal authority to carry out certain actions on their behalf, depending on the scope of the deputyship order.
There are two types of deputyship - one relating to finances and one relating to personal welfare.
Your application to the Court will need to be accompanied by full details of the assets and income of the person for whom you wish to become a deputy if your application is in respect of their financial affairs. If you are applying in respect of personal welfare, then you will need to supply information relating to their current condition.
An assessment by a qualified medical practitioner will need to be carried out in respect of the individual in question. You will also need to give a statement regarding your own circumstances and your ability to take on the role of deputy.
Acting as a deputy
Once you have been appointed, you will have a duty to act in the best interests of the person you represent at all times. The deputyship order will set out the scope of your authority and the decisions that you are permitted to make. If you believe that the individual’s home should be sold, you should return to the Court to ask for separate consent for this.
During your time as a deputy, it is important to keep accurate records of all of your actions on behalf of the person you are helping. You should ensure that their finances are kept separate from your own and that you can clearly show exactly what payments you have made on their behalf. You will be subject to supervision by the Court of Protection and will have to report to them on a regular basis.
If you would like to speak to one of our expert Wills and probate lawyers, contact our Farnham office on 01252 733770 or online.
This information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.
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