Becoming a Deputy for someone who has lost mental capacity

We all know that it is best to plan ahead where possible, but sometimes even with the best will in the world, most of us do not plan for every eventuality.  Life often throws curveballs that we were just not expecting – an accident or a sudden illness and life suddenly can look very different.

None of us really like to think about the worst happening, but it can and does happen.  It is estimated that approximately two million people in the UK are unable to make decisions for themselves, due to accident, disability or illness.

Often the unexpected hits a loved one and this can be in the form of sudden mental incapacity and means that you may have to decide whether you need or want to make an application to the Court of Protection, so that you can become a Deputy and make decisions for your loved one.

Deciding to be a Deputy for someone is a big decision and not to be taken lightly.  It is already an emotional time dealing with the health issues raised but can be totally bewildering when looking at a complicated court application and making financial decisions on top of that and keeping within legal framework.

The Options

The best option, if you are reading this, is to plan ahead before the worst happens and to complete Lasting Powers of Attorney so that your loved ones can help you, should you need it.  See our blog on Lasting Powers of Attorney.

However, if you are reading this, it is likely that the worst has already happened, and your loved one may not have a Lasting Power of Attorney in place, and you are looking to see what you can do.  Unfortunately, in this situation nearly always the only option is to make a Court of Protection application to have a Deputy appointed.  Why not contact us to see what your options are on 01302 349 480.

How do I apply to become a Deputy?

If it has been established that your loved one does not have the mental capacity to manage their own affairs, and you think a deputy will be needed, then you need to apply to the Court of Protection for authority.

Before applying to the Court of Protection you need to follow the criteria set out in the Mental Capacity Act 2005.  This would involve getting a mental capacity assessment for your loved one in the prescribed court form, of which you may need to pay a fee to the mental health practitioner completing it.  You would need to fill out the appropriate court forms, make personal declarations to the Court that are legally binding on you and to pay the relevant court fee.  This can be a complex procedure for many, and we can assist.

You would also be required to pay a surety bond, to be able to get the Court Order once granted and this fee is set by the Court based on your loved ones personal circumstances and the risks involved.

What would I be required to do as a Deputy?

The appointment as Deputy is made by the Court, so they issue a Court Order which details the strict requirements that you are to follow.  This means that you may be limited in what decisions you can make and may need to go back to the Court to make larger decisions, like to buy or sell property.

When appointed as Deputy you have to contact all financial organisations associated with your loved one to inform them of your appointment, by providing a copy of the Court Order and filling their relevant forms in to get you noted on any accounts etc

As a deputy, you must always:

• Make decisions in the person’s best interests;
• Only make decisions authorised by the relevant court order;
• Apply a high standard of care when making decisions and involve the person lacking capacity as much as possible, considering any values or views they have expressed in the past.

You would also be required to keep detailed financial records, as you would need to complete a return every year to the Court on what decisions you have made and why and also to detail the income and expenses of the person.  This must balance, and is a little like a tax return, so it must be accurate.  Record keeping is very important as you can be personally liable for any discrepancies and the repercussions can be very serious.

If you are thinking of becoming a deputy, it is important to think carefully about whether you have the skills, expertise and time to dedicate to this position.  This is not a position to be entered into on a whim and it is best to take legal advice before proceeding further.  It may be better to appoint a professional, as being a deputy can take on a big personal strain and affect your relationship with your loved one, due to the decisions that you may have to make.

For more tailored advice then contact Andrew Isaacs Law Ltd on 01302 349 480 to arrange a consultation.

Article dated: 05/07/24