When would a Deputyship Order be issued?

A Deputyship Order would be issued when a person can no longer make decisions for themselves concerning their health, welfare, financial or property arrangements and they have no Lasting Power of Attorney (LPA) in place. Caroline Johnstone, Associate Solicitor in our Private Client team, explains here who can apply to be a Deputy, the responsibilities and how we can support you in your duties.

In order to become a person’s Deputy you will need to apply to the Court of Protection.  There are two different types of Deputy to correspond with the two different types of LPA that could be in place to appoint an Attorney, in which situation a Deputyship Order would not be needed. 

You can either apply to be a person’s property and financial affairs Deputy, managing their income, bills, bank accounts, property and investments, or their personal welfare Deputy and manage decisions about where they may live or medical treatment.  A personal welfare Deputy will only normally be appointed in cases where there have been disputes in the past, if there is a risk of abuse or the person is likely to require medical treatment over a long period of time.

Who can become a Deputy?

The only criterion on applying to be a Deputy is that you are over 18 years old.  Ordinarily, it is a family member or friend who applies as they know the person well, will be accustomed to their lifestyle and may be more familiar with their wishes had they made an LPA.

To apply, you will need to complete a number of different documents and there are several payments to be made.  Medical evidence is also required to demonstrate the capacity test that has been conducted by a medical professional and what has led to the lack of capacity, for example, if the person has been diagnosed with dementia or had a stroke or serious injury.

Following the submission of these documents, the Court of Protection will usually take between four to six months to approve the application, provided there are no disputes, complications or errors along the way during the application process.  

Will I be the only Deputy?

Depending on your circumstances, you can choose to be the only Deputy or there can be more than one.  In the latter case, there are two options for you:

1. Joint Deputyship – all Deputies would have to agree on the decisions
2. Jointly and severally – Deputies can either make decisions on their own or with the other Deputies.  It would be specified which decisions would be made on your own and which would be made with consensus from the other Deputies.

What decisions am I not allowed to make as Deputy?

In your role as Deputy, there are clear rules as to what you can and cannot decide.  As a Deputy, you cannot:

• Make a Will or a Trust on behalf of the person, or update an existing Will
• Exercise the person’s powers as a Trustee
• Give permission for the person to be restrained, unless it is to prevent them from harm
• Refuse life sustaining medical treatment
• Decide who they will communicate with
• Take advantage of the person’s situation, such as profit from a decision that you have made on their behalf
• Make gifts unless the Court order says that you can
• Hold any money or property in your own name on the person’s behalf

As well as these restrictions, you should also take into consideration the level of capacity a person has.  They may not be able to make important financial decisions, for example agree the sale figure for their property, but they may be able to make other day to day decisions, for example, what they would like to wear or that they would like to go shopping. 

Due to the legal responsibility and accountability that is placed on a Deputy, the Office of the Public Guardian supervises all Deputies throughout the year, taking a view as to whether you have the best interests of the person at the centre of the decisions you are making, and that you are keeping the appropriate accounts and reports in order.

“Becoming a person’s Deputy is a serious task, and one that should not be undertaken lightly,” concludes Caroline.  “The best way to avoid your loved ones having to become a Deputy for you in the future is to have a Lasting Power of Attorney, as you can then specify who you would like to act for you, and you can have those discussions with them ahead of time so they can prepare.  None of us like to consider what may happen in the future, but being prepared is the safest and most practical way to ensure your wishes are heard and to reduce the risk of disputes.”

If you are considering applying to become a Deputy and you are looking for answers from specialist, professional and pragmatic experts, you can call Caroline on 01329 222075 or email carolinejohnstone@warnergoodman.co.uk to book your appointment.  Alternatively, you may find the following resources useful:

• What is a Deputy?
• How long does it take to apply for a Deputyship Order?
• Court of Protection Overview
• The difference between a Lasting Power of Attorney and Deputyship 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.