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Appointing A Deputy (via the Court of Protection) In The Absence Of A Lasting Power of Attorney

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In the absence of a valid Lasting Power of Attorney or Enduring Power of Attorney, no one has legal authority to make decisions on behalf of an incapacitated person about their property or welfare until a Deputy is appointed by the Court of Protection.

Who can be appointed as a Deputy?
A Deputy must be over the age of 18 and in the majority of cases is a family member, relative or friend. However, anyone can apply to the Court of Protection to be appointed as a Deputy and in some cases it is appropriate to have a professional Deputy appointed. An application to the Court may be refused if the person making that application is a bankrupt or has previous criminal convictions.

Can more than one Deputy be appointed?
The Court may appoint more than one Deputy and you can specify whether the Deputies are to act ‘jointly’ or ‘jointly and severally’. If Deputies are appointed jointly all decisions have to be made by the Deputies together, whereas if they are appointed jointly and severally, the Deputies can act together but they can also act independently which is often more practical.

What are the duties and responsibilities of a Deputy?
Deputies must act in accordance with the five statutory principles of the Mental Capacity Act 2005, and at all times ensuring they act within the person’s best interests.

They must also:-

  • make only those decisions authorised by the Court order;
  • have regard to all relevant guidance in the Code of Practice;
  • ensure that their personal interests do not conflict with their duties as a deputy, and not use their position for any personal benefit; and
  • apply a high standard of care when making decisions.

Are there any restrictions on what a Deputy can do?
There are a number of restrictions on a Deputy’s powers. Some examples of what Deputies are unable to do are as follows:

  • make decisions if they believe the person has capacity to make that particular decision for themselves;
  • make a decision that is intended to physically restrain the person, unless it is necessary to prevent them coming to harm and the restraint is reasonable and proportionate;
  • make decisions about life-sustaining treatment;
  • make a Will for the person lacking capacity;
  • act in a situation where there is a conflict without first seeking direction from the Court.

Property & Financial Affairs Deputy and Health & Welfare Deputy
There are two types of Deputyship Order, one to cover property and financial affairs and one to cover health and welfare matters.However, many people are not always aware that Health and Welfare Deputy Orders are granted much more sparingly – and many are rejected by the Court.

Before the Court will even consider an application for a Health and Welfare Deputy they will first need to decide whether to grant permission for the application to be heard, to ensure the application is actually necessary and well founded. Therefore before an application is made specialist legal advice should always be sought.

What is the procedure involved?
An application to Court of Protection is required and the correct forms will need to be filed with the Court, together with the application fee. There are strict time limits in which to serve notice to interested parties and thereafter a Judge will consider the application before granting an order appointing the Deputy. There is also a Security Bond to pay and on-going annual supervision fees.

I am able to assist with Deputyship applications to the Court of Protection - so please do contact me if you would like help in making a Deputyship Application. Alternatively if you have a question, please feel free to ask a question in the comment box below - or contact me on 01908 660 966 or Kathryn.oreilly@franklins-sols.co.uk.

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