Deputyship and Deputyship Applications — Court of Protection
A Deputy is someone appointed by the Court of Protection to make decisions on behalf of a person who lacks the mental capacity to manage their own affairs. Under the Mental Capacity Act 2005, the Court will only consider a Deputy Application if the individual cannot make decisions themselves. In cases where capacity exists, a Lasting Power of Attorney may be the appropriate solution instead.
Who Can Apply to Be a Deputy?
Deputy Applications are often made by family members who wish to manage a loved one’s financial or welfare affairs. Professionals, including Mental Health Law Solicitors and Local Authorities, may also be appointed as deputies.
Before applying, it is important to check whether the person who lacks capacity has already appointed an Attorney through a valid Lasting Power of Attorney or Enduring Power of Attorney. Even if an Attorney exists, the powers granted may not cover the specific matters that need to be addressed, meaning a Deputy Application may still be necessary.
Types of Deputies
Like LPAs there are two types of deputies, and more than one person can be appointed for each type:
Property & Financial Affairs Deputies – Manage financial matters, property, investments, tax, and day-to-day financial obligations. They may also instruct a solicitor to handle non-contentious legal matters, such as preparing tax returns, providing benefits advice, or dealing with routine property issues.
Health & Welfare Deputies – Oversee decisions related to care, accommodation, medical treatment, and wellbeing. These deputies ensure the individual’s health and welfare needs are properly managed when the person lacks capacity.
Deputy Powers
A Deputyship Order specifies the powers granted, reflecting both the needs of the person who lacks capacity and the authority requested by the applicant. Deputies can undertake non-contentious tasks such as managing leases, instructing solicitors for routine conveyancing, handling employment contracts, arranging care, and taking advice on tax or tenancy matters.
Deputies must follow the Mental Capacity Act 2005 Code of Practice in all decisions. Specific authority from the Court is required for contentious matters or litigation, except where the matter falls within the Court of Protection in relation to property and financial affairs.
A Lasting Power of Attorney may also be revoked by the Court to facilitate the appointment of a Deputy if an Attorney has mismanaged the donor’s affairs. If a Deputy has acted without proper authority, they may seek retrospective approval from the Court to recover costs from the protected person’s funds.
How Long Does a Deputy Application Take?
Where applications are uncontested, the process is often concluded in around six months. However, more complex or contested applications can take a year or longer.
Can You Remove a Deputy?
Deputies can be removed by the Court of Protection for several reasons, including acting outside their powers, failing to act in the person’s best interests, or where the Deputy appointment is no longer necessary.
Section 16(8) of the Mental Capacity Act 2005 states:
“The court may revoke the appointment of a deputy or vary the powers conferred on them if satisfied that the deputy has behaved, or is behaving, in a way that contravenes the authority conferred by the court or is not in the protected person’s best interests.”
In considering removal applications, the Court generally approaches family members acting as deputies with openness and sympathy, provided there is no evidence of disputes or concerns about their capacity to act appropriately.
Contact us
If you would like to discuss instructing us to make a Deputy Application, require further information, or wish to challenge an application, please contact us on 02920 765050.
We can make applications for clients in any Court in England and Wales and can facilitate meetings remotely via Microsoft Teams or Zoom for those unable to attend in person.