What is Deputyship?
If you are caring for a loved one who can no longer manage their own affairs, you may need to apply for Deputyship. But what is Deputyship? What does it cover, and how do you apply for it?
This and other important questions you probably have will be answered in our guide to Deputyship.
1) Summary in 30 Seconds
- When a person lacks mental capacity to care for themselves, a close friend or family member can apply for Deputyship in order to handle their affairs.
- There are two types of Deputyship: Property + Finances and Health + Welfare.
- Applying for Deputyship can be a long and costly process. If your family member is still able to create Power of Attorney, this may be a cheaper and faster option for them.
2) What is Deputyship?
- A family member suffers a sudden ilness, rendering them incapacitated for an indefinite amount of time.
- A loved one’s dementia has advanced very suddenly, and they find themselves unable to cope alone.
- A family member with a learning disability requires help with a specific issue or task.
- A relative is hospitalised after an accident and cannot make decisions regarding their own healthcare and living arrangements.
What is similar about all these scenarios? In all these cases, a family member or loved one has lost the mental capacity to make decisions by themselves. This could either be a permanent change, a temporary situation or an issue-specific situation.
Did you know? Many people imagine if they were faced with one of the situations above that as spouse or next-of-kin, you automatically have rights to make decisions regarding a person’s finances or healthcare decisions. This is not the case. You will either need Power of Attorney or Deputyship.
Deputyship is legal authority granted to a person through the Court of Protection, which enables them to make decisions on someone’s behalf. This could be a one-time, issue specific occurrence or a more long-term arrangement. That will depend on what kind of help a person needs.
There are two types of Deputyship:
- Property and Financial Deputyship
- Personal Welfare Deputyship
The most common form granted is Property and Financial Deputyship. There must be a very pressing need for the court to grant a Deputyship order for personal welfare. Usually a family dispute over care or when someone needs help performing a specific task.
What kinds of tasks or decisions might a Deputy make on behalf of someone?
For Property and Financial Deputyship, it could be:
- Receiving income on their behalf, paying bills, a mortgage or care home fees
- Managing their money for them
- Buying or selling a property on their behalf
For Person Welfare Deputyship, it could be:
- Organising a loved one’s affairs in order to move them into a residential care home
- Making healthcare decisions for them
- Managing other day-to-day decisions and tasks.
3) The Deputyship Application Process
Having Deputyship is a serious matter. The court has granted you authority to take control over very important decisions regarding a person’s finances or healthcare. For that reason obtaining a Deputyship order is a lengthy and time-consuming process.
Firstly, you will also need to make sure that you meet the requirements for Deputyship.
- You must be over 18 years old
- Most usually a close friend, relative or a professional (for example, a solicitor or accountant)
- For Financial Deputyship you must have the necessary skills to manage someone’s affairs.
You will also need to submit a number of forms, along with corroborating information if needed:
- The main application form
- An assessment of capacity
- Any supporting information, depending on what type of Deputyship you are applying for
- A declaration, attesting to your circumstances, details of the responsibilities or duties you are likely to perform, any relevant skills or knowledge you might have, evidence of your commitment to the Deputyship, and any other information to evidence your appropriateness.
Once you have submitted all the relevant documents, the Court of Protection will assess your application as well as ensuring that Deputyship is the right for this situation and that there are no objections to your appointment. If the order is granted, they will then decide what level of supervision you will be under, what powers to vest you with, what requirements they will set for you to submit reports or accounts, whether you should receive remuneration, and so on.
As you can see from these decisions they have to make, Deputyship is not a case of just obtaining an order. It is an on-going process. You will have to submit a report each year detailing the reasoning behind the decisions you’ve made and if you have Deputyship for Property and Finances, you will have to submit accounts. You will be subject to a regular assessment. If your duties or responsibilities change over time, or you need to perform duties outside the boundaries of the Deputyship order, you may need to reapply to the courts to change or extend your Deputyship. There is a lot of work involved.
4) Lasting Power of Attorney or Deputyship?
Lasting Power of Attorney is a legal document that a person can create whilst they still retain mental capacity, in order to make their own choices regarding who they would like to handle their affairs in the event that they lost capacity to do so by themselves. The forms can be filled out at any time, and registered with the Public Guardian once the Donor (subject of the L.P.A.) begins to need help.
This differs from Deputyship, which is a court order obtained when a person has already lost mental capacity.
This might make someone think that an L.P.A. is not necessary, that you could just apply for Deputyship if and when such a situation required it. There are a number of important reasons why this is not the case, and why you should definitely create Power of Attorney if the Donor still has capacity.
- An L.P.A. gives a person more dignity and control over their affairs who will care for them in the future. We all have strong feelings about how we want to live our lives and what decisions we want to make regarding our lifestyle, finances or healthcare. A degenerative disease like Azlheimer’s or Dementia will slowly rob a person of much of their power to make their own choices and run their lives. By creating an L.P.A. in advance of needing help, you are empowered to make decisions for who you want to care for you and even really specific preferences for day-to-day life. There can be peace of mind and less worry for you and your loved ones over what will happen to you.
- An L.P.A. is cheaper. There are some large up-front costs involved in applying for Deputyship, as well as on-going yearly costs that will have to be paid for. Instructing a solicitor to create both types of Power of Attorney (Property and Finances + Health and Welfare) will cost somewhere in the region of £350-400, with registration fees of £82 each. Whereas as Deputyship involves:
- Application fee : £365 each (£730 for both)
- Hearing fee (if necessary) : £485
- Adding a new Deputy : £100
- General supervision fee: £320
- Minimal supervision fee : £35
- Solicitor’s fees: varied
Plus for Property and Financial Deputyship, a security bond calculated from the value of the estate + how much of the estate the Deputy will be controlling.
So applying for Deputyship is much more expensive, especially if problems arise.
- Deputyship is a much more complicated and lengthy process. An L.P.A. can be registered and usable in between 8-10 weeks, whereas Deputyship will take upwards of 3 months. In the meantime, it can be very difficult for families to deal with an increasingly difficult situation, and conflicts often arise. Additionally, it can be very hard to obtain a Health and Welfare Deputyship. Such issues can cause significant stress and strain for everyone involved.
Of course, if you are in a situation where it is no longer possible to get Lasting Power of Attorney, then you may not have a choice but to apply for Deputyship. For those who are still deciding whether to create an L.P.A., these important differences might encourage you to do it sooner rather than later.
6/ Responsibilities and Duties for Deputyship
If you are deciding whether or not you are prepared to take on this role for someone, make sure to carefully consider the duties and responsibilities that come with deputyship.
- There are restrictions. Aside from the specific powers granted to you through the order, there are also some important things that a Deputy can’t do. For example, they can’t make a Will on a Donor’s behalf. They should never use physical force or other forms of control to restrain them against their Will. They can’t refuse life-sustaining treatment for them. And they cannot restrict who the Donor can or cannot see.
- They must comply with the Mental Capacity Act Code of Conduct. In line with some of the points mentioned above, a Deputy must abide by the Mental Capacity Act. This means always acting in the best interests of the Donor, allowing them to have a say to as much of an extent as they can, allowing them to make their own decisions wherever possible, even when their choices are not always sensible.
- They have legal liabilities. The Court of Protection will assign specific powers to a Deputy. Acting outside these powers is a very serious misdemeanor, and could cause the court to take legal action against you.
5) Talk to a Solicitor
This is a complex issue that you don’t want to try and tackle unsupported. It is recommended to talk with a solicitor who specialises in this area, who can advise you fully and potentially help you build a case to take to court.
It is pointless to try and make a claim that has no merit. A solicitor will examine the particulars of your case and assess whether you have a viable claim or not, as well as inform you of the potential costs involved and your overall chances of being awarded a sum of money from the estate.
If you are upset or angry at the apparent injustice of not being provided for in this way, your judgement may be clouded and you may not be able to accurately appraise the pros and cons of contesting the Will. It is important to have an unbiased third-party who, along with their legal expertise, can help you look at your case with clarity.
Deputyship Responsibilities: https://www.gov.uk/government/publications/deputy-guidance-how-to-carry-out-your-duties
Making an L.P.A. : https://www.lastingpowerofattorney.service.gov.uk/home
Lara is a Paralegal and article writer at Legal Group U.K. She specialises in writing about Wills, Probate and other Estate Planning matters. If you have any questions or queries, please contact her directly at firstname.lastname@example.org or fill out the contact form.