HomeFor you Court of Protection, Mental Capacity and Powers of Attorney Applications for the Appointment of A Deputy
Applications for the Appointment of A Deputy
If a person lacks the mental capacity to understand and execute a Lasting Power of Attorney and has not signed any previous power of attorney, or if an existing power of attorney they have in place, is no longer valid it may be necessary for a Deputy to be appointed.
When is a Deputyship Application necessary?
A Deputyship Application can be in relation to Property and Financial Affairs or a person’s Health and Welfare.
The Court of Protection can make decisions and/or appoint a Deputy to make ongoing decisions in the best interests of those who lack capacity.
If appointed as a Deputy, you will be able to make decisions on behalf of the person who lacks mental capacity. Such decisions could be in respect of their property and finances or health and welfare, Such decisions must be made in accordance with the Mental Capacity Act 2005 and the Code of Practice and are restricted to the powers given in your Order from the Court.
Who can be a Deputy?
Anyone over the age of 18 can apply to the Court to become a Deputy. When applying you must declare any criminal convictions and/or bankruptcy arrangements and these may lead to the Court turning down your application. You must also declare any possible conflicts of interest (for example if you live in the house owned by the person who has lost mental capacity or you own assets together). Conflicts may lead the Court to turn down your application. Whilst we cannot guarantee the decision of the Judge making the Order, it is better if you let us know about anything you think may prejudice you application at the outset.
A Deputy may be a spouse, family member, friend or professional. The role of a Deputy can be onerous and should not be underestimated. You should only consider applying for the role if you can give the matter the time that it needs.
Recent Court decisions have indicated the Court of Protection’s reluctance to appoint anyone other than a professional deputy when there are large sums of money to deal with.
What Powers will I have as Deputy?
This depends. The circumstances of each case are different and it is important to let us know at the outset what you think you will need to have power to do.
Application to Court
This requires a series of forms to be completed with details of the person who lacks mental capacity and their finances and/or family and relationships. There will also be notified persons/respondents named in the application. This application is then submitted to Court.
At this stage, the Court needs to satisfy themselves that they have jurisdiction to deal with the application. The application must therefore be accompanied by a Mental Capacity certificate setting out the level of mental capacity the individual has to deal with their own affairs.
Persons to be notified, respondents and objections
When the application has been issued by the Court, it is then necessary to notifiy the person whom the application is about, that an application has been made. They then have the opportunity of objecting to the application.
In addition other people who are close to the individual that is the subject of the application should be notified. They also have the opportunity of becoming involved in the proceedings especially if they have concerns regarding the proposed deputy.
The Official Solicitor
If the Application becomes contentious due to objections raised by notified persons or respondents, then an Official Solicitor may be called to represent the person to whom the application relates. Objectors should also get their own legal representation.
The Court application fee is £400 and then a further £500 if a hearing is necessary. There are fee remissions available which may reduce the fees down to £0.
The general rule in property and affairs cases is that all parties legal costs, the Applicant and Respondents will come out of the funds of the Individual who lacks capacity, this also includes the Official Solicitor’s costs.
In health and welfare cases the general rule is that each party pays it’s own costs.
The Court can depart from either rule if it feels that a particular party has acted unreasonably or the circumstances dictate.
Timescale for application
The timescale for an applicant will depend on whether the application is contentious, and if so, whether there is a need for a hearing. However, even in uncontested application, the timescale is approximately 24 weeks.
There is an emergency procedure and an interim directions Order can usually be issued within five or six weeks of submission of the original application.
Looking for further advice from a qualified expert? We have a team of solicitors who are highly experienced when it comes to Deputyship applications to the Court. Call Trethowans today on 0800 2800 421 to arrange a consultation.