The Role of a Court of Protection Deputy

The phrase ‘next of kin’ is common but has no legal status in relation to financial decisions. The only person able to manage your finances, if you lose the capacity to do so for yourself, is a court-appointed deputy or attorney acting under a registered lasting or enduring power of attorney.

A deputy is someone appointed by the Court of Protection to deal with the property and financial affairs of a person who lacks the mental capacity to do so themselves.

A deputy must be at least 18 years old. It could be a family member or a friend. It can also be a professional person such as a lawyer.

In complex cases, particularly those involving large sums of money, the Court may prefer to appoint a professional deputy.

If you don’t know anybody that is able, suitable, or willing to act as deputy, a partner of Wilson Browne, or Wilson Browne Trust Corporation Ltd could apply to the Court of Protection to be appointed.

A deputy for property and affairs can make decisions about financial matters, such as paying bills or buying services; whereas a personal welfare deputy can make decisions about health and welfare matters; such as deciding where someone lives and the care and treatment they receive.

It is rare for the court to appoint personal welfare deputies and it will only do so in the most difficult cases.

If there is a dispute about a health and welfare decision the court will usually make the decision itself rather than appoint a deputy to make the decision.

The law presumes that everyone has the capacity to make a decision unless it can be shown otherwise.

An assessment of capacity (on form COP3) by a qualified practitioner must accompany the deputyship application, so the court can decide whether the person lacks capacity to make certain decisions for themselves.

The court will require the proposed deputy to complete a deputy’s declaration (COP4) to ensure they are financially sound and understand their responsibilities as deputy.

The court will decide whether the person lacks capacity and what sort of decisions the deputy will need to make. This will be set out in a court order.

Only those which are set out in the court order. The deputy will usually be allowed to:

• deal with any income, and to pay any bills and debts;
• deal with any cash assets, e.g. bank and building society accounts;
  manage or sell property;
• make small gifts on special occasions such as birthdays; and
• deal with any capital assets and make any investment decisions.

No, the deputy can only do what it says in the court order. They must also work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act.

It can take between 3 and 9 months for a deputy to be appointed. It can take even longer if the court needs more information to decide the application.

To avoid delay, it is important that all of the forms are completed properly and the court is given all the relevant information at the start.

In very urgent cases, you can ask the court to grant an interim order, for example, to access funds to pay debts.

The court requires that all deputies for property and financial affairs arrange a security bond with an approved insurer Security is a type of insurance to protect the person who lacks mental capacity in the unlikely event that the deputy were to misappropriate their funds.

The deputy must set up their security before their appointment takes effect. The level of security is set by the Court.

The deputy is responsible for paying premiums from the funds of a person lacking capacity

Deputies are supervised by the Office of the Public Guardian (OPG), and the deputy must send a yearly report to the OPG explaining what decisions they have made and accounting for the money they have spent.

The deputy can instruct a solicitor or accountant to prepare the annual report on their behalf.

The court order will say how long the deputyship will last.

If the person stops lacking capacity, then an application will have to be made to the Court of Protection to discharge the deputy. If the person dies, the deputyship automatically comes to an end

This will depend on what the court order says, many deputyship orders restrict the sale of property.

Specific authority will need to be sought in the original deputyship application or a subsequent application. The Court will want to be satisfied that the person cannot or will not be returning to live there and that the relevant Deprivation of Liberty authorisations are in place if relevant.

If the property is jointly owned then a special new trustee application will be needed.

We can advise deputies on selling property and whether they need to make another application to the Court of Protection

Yes. In certain circumstances, the court can make what is known as a statutory Will or authorise gifts over and above those that the deputy can make. These are however separate applications to the Deputyship application.