Gardner Leader

Lucy Samara, Solicitor within the Inheritance Protection Team at Gardner Leader LLP Solicitors, explains what happens with your affairs on the loss of mental capacity 

I have concerns about a family member who is having difficulties in making day-to-day decisions.  What should I do?

If you are having concerns that they no longer have the mental capacity to manage their own affairs or make reasonably straightforward decisions, and they have not prepared an Enduring Power of Attorney or a Lasting Power of Attorney appointing attorneys to act on their behalf, you may need to apply to the Court of Protection to be appointed as their deputy so that you can manage their affairs and make decisions on their behalf.    

What powers will I have if I am appointed as their deputy?

You will have powers to make decisions relating to their personal welfare, property and financial affairs.   Such powers could include the right to consent to or refuse life-sustaining treatment and the authority to sign cheques and sell property on their behalf.  

The powers granted to you will depend on the Court Order.  You are not permitted to make a decision on their behalf if the Court Order does not give you the express authority to do so.  For example, you would not have the authority to sell their house if the Order does not specifically give you the power to sell such property.

Do I have any duties when I am acting as their deputy?

Yes, by being appointed as their deputy you could have the authority to make life-changing decisions on their behalf.  You are also obliged by the Court of Protection to carry out your duties rigorously, so you must always act in their best interests, and act with a high degree of care. 

Will I be monitored by the Court of Protection?

Yes, the Court of Protection will ask you to provide some form of security to cover any loss which may occur.  This will usually consist of you taking out a Security Bond with a bank, the level of which will be determined by the amount of funds that you will be dealing with.

In addition, the Court of Protection may require you to submit regular accounts and you can also expect a visitor from the Court to check to see that you are managing their affairs efficiently.

Can more than one person be appointed as a deputy?

The Court of Protection generally does not like to appoint more than one person to act as a deputy.  They will, however, consider applications to appoint more than one person if it is an exceptional circumstance.

How long will it take before I am appointed as their deputy?

At present a Deputyship Order is taking approximately 3-4 months from when the application is sent to the Court.

Where do I get further information?

You can visit the Office of the Public Guardian’s website which details the procedure.  You can also contact me at Gardner Leader or a member of our Inheritance Protection Team, who will be able to advise and guide you through the procedure. It is essential that the application seeks all of the powers that you are likely to require in managing their affairs and we will help you to achieve this.