If you have a loved one who lacks the mental capacity to make decisions in respect of their property or financial affairs, be it through an illness such as dementia, a condition they were born with such as autism, or perhaps following a life changing accident, whereby they have acquired a traumatic brain injury, then the deputyship solicitors team at Reeds are here to help you.
To see our other related services, see our Court of Protection page here.
What is a Deputy?
A Deputy is someone appointed to make decisions in the best interests of another who has lost the mental capacity to make those decisions for themselves. Where the financial affairs are very complex, a Professional Deputy may be appointed by the Court. However, when a person’s assets are a more limited and broad agreement can be reached, it may be more appropriate for a friend or family member to be appointed as a Lay Deputy.
When does a deputy need to be appointed?
A deputy will need to be appointed where someone lacks the mental capacity to make decisions about their property and financial affairs.
Mental capacity is defined by someone’s ability to make a decision. The ability to do so is decision and time specific. In order to have capacity to make a decision, they must be able to:
- Understand what the decision involves
- Remember information for long enough to make a decision about it
- Use and weigh up the information to reach a decision
- Communicate the decision
If a person is unable to do any one of these steps, then they will lack the mental capacity and will need someone to help them. This is when a deputy needs to step in.
Who can act as a Lay Deputy?
A long-standing friend or a close relative of the person who lacks capacity can act as a Lay Deputy. The Court will want to establish the relationship and appropriateness of the person to take the role and will want to know how often you see the person concerned and how involved you are in their life. The most important qualification is that you have the best interests of the individual in mind at all times.
A Lay Deputy must also be over the age of 18 and of demonstrably good character, which may mean that you are disqualified from being a deputy if you have a criminal record or have previously been declared bankrupt.
What can a Lay Deputy do?
Deputies can be appointed by the Court of Protection to deal with property and financial matters or with personal welfare issues on behalf of the person lacking capacity. We currently specialise in financial deputyship.
As a financial deputy, some of your duties may include:
- Managing bank accounts or investments
- Buying a property for someone to live in and paying any necessary bills
- Selling a property if someone needs to go into a care home and paying their care home fees
- Applying for and managing benefits
- Signing tenancy agreements
- Dealing with personal injury claims and compensation payments
You must have specific authorisation from the court to make certain decisions.
You will also need to complete an annual deputy report and submit this to the Office of the Public Guardian (“OPG”). It is the OPG’s role to supervise you and ensure that you are acting in the person’s best interests.
How do I become a Lay Deputy?
Firstly, we would advise that you discuss the possibility of becoming a deputy with other close friends and family of the person concerned, just to confirm that all would be happy for you to be appointed in the role.
You will then need to make an application to the Court of Protection. This involves a number of application forms (COP1, COP1A, COP4) including a capacity assessment from a social worker, psychiatrist or GP.
How can Reeds Solicitors help me to become a Deputy?
We can assist you in making the application to the Court of Protection. The process can be complicated and long-winded, so you may prefer to have legal advice and guidance. One of our specialist solicitors will ensure that the application is completed properly and that the people who must be notified about the application are told in good time. If the application is contentious (because someone objects) and you have to go to Court, then you will also benefit from legal representation at any hearings.
How long does it take to be appointed as a Deputy?
The process of being appointed as Deputy can be lengthy and can take between four to six months. Four forms must be completed, including a capacity assessment by a relevant professional. Once the application is submitted to the Court of Protection, the applicant also has a duty to notify certain categories of people, including relatives of the person lacking capacity. After this notification there is usually a two to three month wait for the Deputyship Order to be authorised. If any of the people who have been notified object to the Deputyship application, then the proceedings become contested and can take many more months to resolve.
How much does it cost to make an application for deputyship?
A fee of £371 must be paid to the Court of Protection when the application is submitted. Some people may be eligible to have the fee reduced or waived entirely depending on the level of their savings and income.
In addition, our Solicitors will charge a reasonable fee for their advice and assistance regarding the application. All costs relating to the appointment of a Deputy for property and financial affairs can be recovered from the person who needs the Deputy. Often the prospective Deputy pays the costs and reimburses themselves once the Deputy Order is received and they have access to the bank account of the person who lacks capacity.
Is legal aid available?
Unfortunately, legal is not available for deputyship applications to the Court.
You can pay for advice and representation on a privately paying basis and we are also prepared to undertake work on a fixed fee basis for straightforward applications. Please do contact us for a quote.
Put your mind at ease, and speak with a solicitor regarding your situation now. Drop us a call using the phone number here, or send an enquiry through the contact us page.
Testimonials and Client Feedback
Sadé Asker – Court of Protection Solicitor
“Thank you [Sadé Asker] for being so helpful and patient with us. Thank you for all your help and support throughout what was an extremely challenging and stressful process.”
(5* Review from Anonymous Client, 01/02/2022)