When is a Deputyship Order necessary?

A Deputyship Order from the Court of Protection might be required, for example, if access is needed to someone’s finances and they no longer have mental capacity to make decisions for themselves. Normally, if that person has made an Enduring Power of Attorney, or a Lasting Power of Attorney, a Deputyship Order can be avoided, but without one of these documents being in place, there may be no alternative other than to apply to the Court of Protection for a Deputyship order.

Simply put, if someone has lost mental capacity then they will not be able to put a new Power of Attorney in place.

What types of Deputyship Order can be issued?

There are two types of Deputyship Orders, which are as follows: –

• Property and Financial Affairs Deputyship. This would cover things like money, investments, property, etc.
• Personal Welfare Deputyship. As it sounds, this would cover matters like care packages, where someone might live or medical treatment the person who has lost mental capacity might need or other matters relating to their health.

What is a Deputy?

A Deputy is someone authorised by the Court to act in place of the person that has lost mental capacity to deal with issues on their behalf. Normally this is done under a framework of directions issued by the Court, which is why a either an Enduring Power of Attorney or Lasting Power of Attorney is generally preferred in such situations as they would normally provide greater flexibility.

Who is normally appointed as a Deputy?

Usual choices for such a role are a family member, a friend or professional like a solicitor.

Can there be more than one Deputy appointed?

This is possible, and there are two separate types of appointment. The first is a joint Deputyship where all Deputies have to agree a decision is made or, alternatively, a joint and several Deputyship which means that the Deputies can make decisions by themselves or together.

What duties does a Deputy have?

A deputy would generally be required to do the following: –

• Act in the best interests of the person who has lost mental capacity.
• Observe any Court orders that instruct the Deputy what to do.
• Not take advantage of the person that has lost mental capacity.
• Act in good faith and respect the confidentiality of the person that has lost mental capacity.
• If the Deputy is acting in respect of Property and Financial Affairs, they will have a duty to keep financial accounts and keep the person’s money and property separate from their own. Normally this is carried out by way of keeping the person’s money in their own accounts.
• If required by the Court, to file an annual report breaking down how that person’s assets, income and expenditure have been dealt with over the course of 12 months.

Can the Deputy meet bills on behalf of the person that has lost mental capacity?

Yes, this would normally be a fairly fundamental requirement for the Deputy to do their job. They would ordinarily be permitted access to the person’s bank account via debit card, telephone banking and online banking as is required.

Can a Deputy make a gift from the person that has lost mental capacity?

This would normally depend on what is in the Deputyship Order, made by the Court of Protection. Ordinarily, the Deputy would be permitted only to make gifts in accordance with those that the person who has lost mental capacity made during their lifetime for usual occasions such as birthdays, seasonal gifts, etc. Anything out of the ordinary or carried out for Inheritance Tax planning purposes would normally require the further authority of the Court of Protection.

Can a Deputy sell the person’s home to pay for care fees, for example?

It would be necessary to seek a specific reference in a Court Order, indicating that the Deputy does have power to sell the home of the person that has lost mental capacity.

If this is not included in the original Deputyship application, a further application may be required to seek this in a new Order.