Understanding the Role of a Court of Protection Deputy
Exploring the Court of Protection
The Court of Protection operates on the basis of a specialised jurisdiction, and it assumes responsibility for people who have been found to lack capacity to make various decisions regarding property, finances and personal welfare.
Unveiling the Court of Protection Deputy
A court of protection deputy is an individual designated by the Court of Protection to oversee the property and financial matters of an individual who is unable to manage them due to mental incapacity.
Eligibility for Deputyship
In theory, most individuals over the age of 18 can be Court of Protection deputies. This role could be taken by a family member, friend or even a solicitor. In larger estates, or in cases where there is a history of family disharmony, the Court might opt for a professional deputy and there are many accredited panel deputies who will be approached unless there is another suggested person who consents to act and would be suitable.
Can a “next of kin” act on behalf of a person without capacity?
In theory, yes. However the term ‘next of kin’, whilst commonly used, does not have any legal significance concerning financial decisions, and whilst they might be consulted on other matters, they do not automatically inherit legal authority to make decisions on someone’s behalf. Exclusive authority to manage a protected party’s financial affairs is either vested in their attorney (appointed pursuant to a registered lasting or enduring power of attorney) or a deputyship order from the Court of Protection.
Property and Affairs Deputies
A property and affairs deputy exercises decision-making power over financial matters, including bill payments, administering property and personal money. Property and affairs deputies can make other big decisions such as whether to acquire assets, make investments and employ service providers, but usually need to seek permission from the Court specifically for those things.
Personal Welfare Deputies
Conversely, a personal welfare deputy is responsible for some or all health and welfare decisions, such as determining where a protected party lives and what care they receive. Sometimes the personal welfare deputy can make medical decisions on their behalf. It is very rare for the Court to appoint a personal welfare deputy and this usually only happens when it makes practical sense. In disputes over health and welfare decisions, the Court often makes the final decision rather than appointing a deputy but the various “interested parties” (usually relatives, care providers, the local authority and medics) are encouraged to cooperate and try to reach decisions collaboratively.
Understanding ‘Incapacity’
As per legal presumption, every adult is considered capable of decision-making unless proven otherwise. In order to prove that an individual lacks capacity, a formal assessment by a qualified practitioner is usually required (unless the protected party is incapable of communicating with anybody). When applying to the Court of Protection for the first time, a capacity assessment on form COP3 must accompany the deputyship application, and the Court will only usually make a decision once it has determined whether the person lacks the capacity to make specific decisions autonomously.
Is the intended deputy suitable?
Proposed deputies are required to complete a deputy’s declaration (COP4) and submit this when applying to Court for an order. The COP4 is intended to assure the Court of that individual’s own financial competence, trustworthiness and their understanding and acceptance of the responsibilities that will befall them as deputy.
Appointment by the Court of Protection
The Court determines whether the individual lacks capacity and whether the intended deputy/deputies may be appointed. The deputyship order will usually outline the deputy’s permitted powers. The process of becoming a deputy has been historically very slow but the Court of Protection’s processes are improving. Urgent applications can be made if the circumstances permit it.
Extent of Deputy’s Powers
Deputy powers are exclusively outlined in the court order.
Typically, deputies can:
- Deal with the protected party’s income;
- Pay any liabilities or bills on their behalf;
- Manage that person’s banking and access their accounts;
- Oversee or sell property (however we recommend the deputy asks the Court to include this in the order);
- Make small gifts for special or customary events;
- Manage capital assets and make investment decisions; and
- Arrange and pay for that person’s care and treatment.
Boundaries of Deputy Authority
Deputies cannot stray beyond the powers in the deputyship order without the Court’s permission. They must keep frequent accounts and liaise with the Office of the Public Guardian annually. They also must adhere to the Mental Capacity Act 2005 (particularly section 4 when making a decision on behalf of the protected party) and have regard to its accompanying Code of Practice.
Duration of Deputyship Appointment
Deputies are normally appointed indefinitely but the Court has the discretion to put a time limit on the deputyship order. Sometimes, the protected party can regain capacity either partially or fully and an application to Court is normally needed to discharge the deputy when this occurs.
Property Sale by a Deputy
A deputy’s ability to sell property hinges on the court order. Many deputyship orders restrict the deputy from being able to sell a property and when this is the case, a fresh application to court must be made to get permission. If the property is jointly owned, a distinct trustee application is essential because the protected party may lack the capacity to be able to execute a transfer deed and a trustee is needed to do this on their behalf.
Will-Making and Gift Authorisation by the Court
If the protected party has no Will, or if their Will might no longer be suitable (e.g. due to divorce or historic financial abuse by a beneficiary), the deputy can apply to Court for a statutory Will to be made on their behalf. Protected parties sometimes want to give gifts to their relatives and friends, and whilst this can be permitted to a very limited extent within a power of attorney or deputyship order, specific permission is usually required to make large gifts or to go beyond the “traditional” levels.
For more information on the processes involved in applying to the Court of Protection, don’t hesitate to consult with our expert, Lewis Hastie.
