Deputyships – what you need to know
Fosters Solicitors answer questions from Let’s Talk readers.
What is a Deputyship Order?
A Deputyship Order is an order made by the Court of Protection appointing a deputy to make decisions about a person’s personal welfare or property and financial affairs if they lose the mental capacity to manage such matters themselves.
What is the difference between a Deputyship Order and a Lasting Power of Attorney (“LPA”)?
Both Deputyship Orders and LPA’s are legal documents authorising someone else to make decisions for somebody who lacks mental capacity. An LPA is made by a person whilst they still have mental capacity whereas a Deputyship application is made by a third party on behalf of somebody who has lost their capacity.
A person who lacks mental capacity has no control over who makes decisions on their behalf. The person making the decisions will be appointed by the Court. By making an LPA during your lifetime you can ensure that you choose the person you want to make such decisions for you.
Who can be a Deputy?
The Court will appoint the person or people who they consider to be best placed to look after the incapacitated persons interests. Usually a family member, a close friend or a professional, such as a solicitor is appointed. In situations where nobody is available to act the Court will appoint what is known as a panel deputy. The Court keeps a list of approved professional deputies to choose from in these circumstances.
How long does a Deputyship application take?
Once the application has been prepared and sent to the Court of Protection it currently takes 3 to 4 months for the Order to be made, though this will depend on a number of factors. If there are unusual circumstances or the application is contested it will take longer.
What are the duties and responsibilities of a Deputy?
The Deputyship Order sets the boundaries as to what a deputy can and cannot do and will take into account the needs of the person who lacks capacity. No two orders are the same. However, they all have a core requirement that the Deputy must act in the incapacitated person’s best interests.
Deputies must have regard to the Mental Capacity Act 2005 Code of Practice. This contains information about a Deputy’s duties and responsibilities.
If an order does not give the Deputy authority to make a specific decision the Deputy can make an application to the Court of Protection for such authority or to ask the Court to decide
If someone close to you who has lost or is beginning to lose their mental capacity and they have not already made either an Enduring or a Lasting Power of Attorney then Fosters have an experienced and professional team who will be able to advise you and explain the best way forward.
- Send your legal questions to: Let’s Talk Help and Advice, Fosters Solicitors, Wills, Trusts & Probate Dept, 19 Bank Plain, Norwich NR2 4FS or email firstname.lastname@example.org