Deputyship

Deputyship order for those without a Lasting Power of Attorney

In the event that an adult lacks the requisite mental capacity to make decisions for themselves and has not appointed an Attorney (under a Lasting Power of Attorney or in certain circumstances, an Enduring Power of Attorney) to act for them, it will be necessary to apply to the Court of Protection for a Deputyship order.

A Deputy is a person approved by the Court of Protection to manage the affairs of a person without capacity (P). The key difference between a Deputy and an Attorney is that an Attorney is appointed prior to loss of capacity and therefore P has exercised a choice, whereas a Deputy must apply to the Court and provide evidence to show that they are best placed to manage the affairs of P.

Just as a Lasting Power of Attorney can be created to allow decisions for Health and Welfare and Property and Financial Affairs, it is possible to apply to the Court of Protection for a Deputyship Order in respect of Health and Welfare or Property and Financial Affairs.

If a proposed Deputy is successful in obtaining a Deputyship Order, they will need to take out a security bond to cover losses to P’s estate and will also be subject to annual supervision by the Court of Protection. Costs are payable to the Court for supervision.

It can be quite difficult to persuade the Court of Protection to grant an order appointing a Deputy for Health and Welfare decisions, the logic being that a general order in this regard leaves too wide a scope for abuse. Instead, the Court may be willing to grant an order for a specific issue. We can advise and assist with general applications to the Court of Protection if this is required.

If you are considering acting for a person that does not have capacity then you need to be aware of your duties and obligations. Please contact us to discuss.