COURT OF PROTECTION

If you know a family member, friend, neighbour or anyone who you think is having difficulties in making decisions about their property and finance or their personal welfare and they have failed to put in place Lasting Powers of Attorney for Property & Financial Affairs and Health & Welfare, then they may need someone to be appointed to make these decisions on their behalf.

The Mental Capacity Act 2005 took full effect from 1 October 2017. From that date anyone appointed as legally responsible for acting and making decisions for a person who lacks capacity to make those decisions for themselves is called a deputy.

Everyone working with or caring for an adult who lacks capacity must comply with the Mental Capacity Act.

In order to be appointed as deputy, the Court of Protection has to be sure that it is appropriate. Certain documents are submitted giving details of the medical condition, assets and general background of the personal who lacks capacity. The proposed deputy also has to give information about themselves, stating that they are a fit and proper person to act. Independent evidence is required from a medical practitioner to support the application.

The deputy can be a professional person, friend or relative.

In normal circumstances an order is issued and this will give the deputy limited powers to deal with the financial affairs or health & welfare of the persona who lacks capacity. For financial affairs, a sealed copy of the order must be registered with those organisations holding assets for the person who lacks capacity.

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THE DEPUTY’S AUTHORITY AND DUTIES

Annual Accounts must be completed by the deputy setting out details of all money received and spent on behalf of the person who lacks capacity, where the deputy is acting under a property & financial affairs order. This is made easier by opening a deputyship bank account on behalf of the person who lacks capacity, through which all money passes.

The “lay” deputy is entitled to claim reasonable out-of-pocket expenses. A professional deputy is paid for their work either by a fixed fee set by the court or by having the fees assessed (ie checked, approved and normally reduced) by the Supreme Court Costs Office. The Court of Protection also charges administration fees for their ongoing involvement.

A security bond is required and the premium is paid out of the funds of the person who lacks capacity. This is to protect against any loss to the assets of the person who lacks capacity, should a deputy fail in his or her duties.

The order will operate until either the Court is satisfied that the person who lacks capacity can now manage his or her own affairs or until they die, in which event the deputy’s authority automatically ceases.

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