Explained - Court of Protection and Deputyship
Here in the latest of our Q&A series, Cheryl Styles, a Legal Casework Manager within our Private Client Department, takes time to help explain the role of the Court of Protection, the concept of Deputyship, and how both routes can help families and individuals protect their interests.
Q. What is The Court of Protection?
The best way to describe the Court of Protection is that it’s essentially a specialist court. It was set up to protect the interests of people who lack mental capacity and who are unable to make certain decisions relating to their finances or perhaps their health and welfare.
The Court of Protection can make a range of decisions, including:
- Whether a person has capacity to make decisions for themselves.
- The appointment of and/or suitability of someone applying to the court to be appointed as a Deputy.
- Rulings around statutory wills and gifts, including for purposes of Inheritance Tax Planning.
- Emergency applications for urgent decisions on behalf of a person who lacks mental capacity, and;
- Whether a Deprivation of Liberty (DoL) Safeguard authorisation has been lawfully granted. This is essentially a safeguard to ensure any care is being done in the individual’s best interests.
Q. What is a Deputyship?
Deputyship is an order made by the Court of Protection that appoints one or more individuals as Deputy to make decisions on behalf of someone else who lacks mental capacity. There are two different types of Deputyship, ‘Health and Welfare’ and ‘Property and Affairs’, and each requires their own application to the Court of Protection.
Q. Is Deputyship the same as Power of Attorney?
A Lasting Power of Attorney (LPA) can only be created if the person to which it relates has capacity. Like Deputyships there are two different types of LPA, one for dealing with property and financial affairs and the other dealing with health and welfare.
A Deputyship Order can only be made if the person to which it relates already lacks capacity and therefore cannot make an LPA.
Q. Who can be a Deputy?
The role of a Deputy can be fulfilled by a lay person, such as a family member or friend. However, if there is no one suitable or able to act, the Court can appoint a professional Deputy such as a Solicitor.
More than one person can be appointed as a Deputy, and they can work jointly or independently of each other. Joint appointment works well when all persons agree with what is best for the individual concerned, but sometimes there are disputes. If this happens amongst lay Deputies, then occasionally the only way forward is for an independent professional to be appointed.
Q. What is a professional Deputy and what do they do?
The first time most people hear about the role of a professional Deputy is usually when they have a loved one who has lost capacity and which then requires a court appointed professional to make financial arrangements on their behalf. This is when either an LPA or Deputyship is arranged.
So, what can our team do to help?
In short, we can take care of lots of issues, spot any issues, and generally make the process smoother.
In a typical week we handle the collection of DWP benefits, retirement pensions, investment income and more. We also arrange necessary payments out such as care fees, or household and domestic bills for those people who still live in their own home with support. We may even need to arrange to buy or sell property.
Where there is a large portfolio of money to be invested, we have regular contact with Independent Financial Advisors, and we deal with investment paperwork and tax returns as required.
We can organise someone’s budget to provide for anything that is necessary for them. We understand that everyone’s budget is different according to their needs. In some cases, this may involve a budget for buying clothes, household improvements, maintenance, trips out, holidays and more.
From sorting complex matters such as tax returns and investment decisions, to organising something as simple as day trips out or the ordering of essential items, the role of a professional Deputy is vital and varied.
We liaise with multi-disciplinary teams to discuss care packages for people in their own homes or in residential care and liaise with social workers, health officials, advocates, and anybody else required to ensure that the person’s best interests are met. We also liaise with the Office of the Public Guardian, social work teams and the local authority.
If clients still own their property, the role can involve arranging annual gas and electric inspections, dealing with general household issues, utility bills, applying for planning permission for extensions, or even organising landscape gardeners.
For clients living in their own home, or even those living in residential care we can employ professional visitors to prevent them from feeling isolated.
We try to encourage our clients to still have the fullness of life wherever possible, whether in their own home or in residential care.