If someone becomes incapable of making decisions without having drawn up a lasting power of attorney (or an enduring power of attorney), an application will need to be made to the Court of Protection for a deputy to be appointed. This would allow them to make day-to-day decisions for a person lacking capacity, most commonly relating to property and financial affairs. Occasionally personal welfare deputies are appointed.
We can provide guidance and assist you with your application to the Court of Protection.
The Court of Protection is responsible for decisions regarding welfare or financial matters for people who can no longer make decisions because they lack mental capacity.
Typically a family member applies to become the deputy. In some cases there is no relative or friend willing and able to perform the role. In that case, a professional attorney (often a specialist solicitor on the COP’s panel) is appointed.
The role of the deputy is similar to that of the attorney, but it is more closely supervised by the Court of Protection. Because the person has already lost capacity before the application is made, they are not usually involved in deciding who is appointed as deputy. Therefore they often have no opportunity to express their preferences about actions the deputy should (or shouldn’t) take.
It is possible to make an application to the Court of Protection to make or change a Will on behalf of the person that has lost capacity. This is known as a statutory Will and it cannot be done without the Court of Protection being involved. Because of the cost involved in making an application this is usually only done if there has been a significant change in their circumstances since they made a Will. An application may also be made if they have never made a Will and the intestacy rules would result in an outcome that is not in the person’s best interests.
Dealing with the Court of Protection can be time-consuming and expensive. Often a solicitors needs to help navigate the complexities of the application process. Once the application has been made the court it usually takes up to six months to grant the deputyship. There is the possibility of an emergency application for example if an urgent welfare decision is required or funds are needed urgently to pay for care.
Applying for a deputyship can be more costly than having an LPA put in place. It can also be time consuming and stressful for family members. Currently, the application fee is £365, there will be legal fees as well if you have a solicitor involved. In addition there is an annual supervision fee charged by the Office of the Public guardian (OPG) and an annual security bond.
Undoubtedly, drawing up a lasting power of attorney in advance is the preferable solution. It gives the person the opportunity to express their own wishes about their future care, medical treatment and financial management. If a power of attorney does not exist, a deputyship may be necessary to ensure that a loved one’s health, welfare and financial affairs are properly looked after.
The Court of Protection also makes decisions where there may be a disagreement. Our Inheritance Disputes team can provide guidance where you may need to remove a deputy or an attorney of a lasting power of attorney. For more information on how the Inheritance Disputes team can assist please click here.
If a loved one has lost the ability to make decisions on their own regarding their finances or personal welfare we can assist you with an application to the court of protection. We can provide guidance on the application process to ensure that the deputyship is granted as soon as possible to safeguard your loved one. Please contact one of our inheritance protection specialists below.