Sometimes, although you have tried to plan as carefully as you can for the future, something happens that throws everything up in the air – an accident, a sudden illness, an operation that goes wrong – and instantly, life looks very different.
When someone you love loses mental capacity – the ability to understand information and make important decisions about their own affairs – you may have to decide whether you need or want to become a Court of Protection (COP) appointed deputy to act on their behalf.
At an already emotionally bewildering, upsetting and stressful time, this inevitably means a lot of information to take in and process, soul searching to be done and difficult decisions to be made.
But if you are reading this article without a crisis to deal with, and still have time on your side, then the very best thing you, your spouse, partner or elderly relative can do is to set the wheels in motion as soon as possible to appoint an Attorney to look after your affairs if there is a loss of mental capacity in the future.
You can appoint an Attorney by making a Lasting Power of Attorney. There are two types. One covers financial decision making and the other personal welfare decisions like where you live, your medical care, your clothes, diet and so forth.
Although none of us like to think about this prospect, there are an estimated two million people in the UK unable to make decisions for themselves because of disability, mental illness, brain injury or dementia. It can and does happen.
Unfortunately, it isn’t the case that friends and family can simply take over – not having Lasting Powers of Attorney in place has far reaching implications. For example, you have no say in who the Court appoints as your deputy, the local council could be appointed if the COP turns down a deputy’s application and your family will end up having to pay extra to apply for and fund a deputyship.
But sometimes, sadly, the COP is the only avenue available.
So, what does being a deputy involve and what do you need to consider when thinking about becoming one?
Applying to become a deputy
Once it has been established that someone doesn’t have the mental capacity to manage their own affairs anymore, it may be decided that a deputy needs to be appointed by the COP to deal with their property and financial affairs. Sometimes, the court appoints a deputy to make personal healthcare or welfare decisions, but this is only in extreme cases.
If you don’t know whether the person concerned has an LPA set up or not, which is sometimes the case with elderly relatives, it’s important to check now before any application is made. Have a look amongst the person’s papers or if appropriate approach their solicitor. You can also search the registers of the Office of the Public Guardian which will show if they have a registered LPA or LPAs.
If they do have one, this will save a lot of time and effort because it will already be on record what they want to happen if they lose mental capacity. Sadly, this time has now come and helping put in place what you know they wanted can be comforting.
But if there isn’t an LPA, applying to be a deputy means you have to meet the legal criteria set out in the Mental Capacity Act 2005, obtain the relevant assessments and fill out the appropriate forms which can be a complex procedure. The person lacking capacity also has to pay for a Surety Bond – a form of insurance in case the deputy does the wrong thing with their finances.
What does a deputy do?
When you are appointed as a deputy, you will receive an order from the court setting out your specific powers in relation to the person who lacks capacity, depending on what, and how much help, they need.
You will get a number of certified copies of this document which will enable you to show them to organisations like banks and insurance companies when you need to discuss financial matters.
As a deputy, you must always:
- Make decisions in the person’s best interests;
- Only make decisions authorised by the relevant court order;
- Apply a high standard of care when making decisions and involve the person lacking capacity as much as possible, considering any values or views they have expressed in the past.
If you are considering applying to be appointed as a deputy, taking legal advice can be hugely helpful as the application process can be stressful and time consuming. It’s also possible that you might want to talk to a solicitor about appointing them as a professional deputy in situations where there is no-one else suitable or where no family members wish to take on the role.
Solicitors who are members of SFE have demonstrated specialist knowledge about COP matters. They have undertaken specialist training in older client law to attain the Older Client Care in Practice Award. All members follow a strict code of conduct, so you can feel confident in the advice you are receiving.
Head of the Wills, Probate and Mental Capacity team at Wards
Jenny is Head of the Wills, Probate and Mental Capacity team at Wards and specialises in Will writing, probate, long term care planning, capital tax planning, elderly client law & trusts and law relating to mental incapacity.
In 2015 Jenny was appointed to the Office of the Public Guardian’s prestigious Panel of Professional Deputies and is frequently appointed as a Professional Deputy for Property and Affairs, for vulnerable clients who lack capacity. She also has a STEP Advanced Certificate in Advising Vulnerable clients.
In addition Jenny is:
- A director on the board of Solicitors for the Elderly (SFE) 2018
- The Regional Coordinator for Bristol & Bath Solicitors For the Elderly
- A full Member of the Society of Trust and Estate Practitioners
- A Member of Law Society Probate Section
- The Winner of the Association of Women Solicitors 2010 award for the Best Woman Solicitor Managing a Probate Practice