Deputyship and Deputyship Applications made to the Court of Protection

What is a Deputy?

A Deputy is someone appointed by the Court of Protection to make decisions for someone who is unable to do so on their own. Whether a person is deemed to have capacity to deal with their affairs or not is a matter that is referred to in the Mental Capacity Act. If a person can deal with their own affairs the Court will not entertain granting a Deputy Application, in these circumstances a Lasting Power of Attorney may be considered by a willing Donor.

Who can make a Deputy Application?

Often family members make Deputy Applications to be able to deal with a loved one’s affairs. Deputies may also be professionals; Mental Health Law Solicitors are often appointed as are Local Authorities. Please note this is not an exhaustive list of whom may apply.

Before considering making an application you should make inquiries to ascertain whether the person who lacks capacity appointed an Attorney (through a valid Lasting Power of Attorney or Enduring Power of Attorney) to deal with their affairs in the event they lacked capacity to do so. It could be the case that an Attorney exists however the Donor didn’t grant them the power to deal with the matter that requires addressing.

Types of Deputies

There are 2 types of deputies:

  • those who look after property and financial affairs and
  • those who look after a person’s health and welfare

There can be more than 1 person appointed as deputy to each type.

How Long does a Deputy Application take?

Where an application is not contested, they are often concluded in around 4 months. However, applications can take a year or more.

If the Court of Protection grants my Deputyship Application what are my Powers?

The Deputyship Order will specify what a deputy can and cannot do after considering what the applicant has specifically applied for as compared to the needs of the person who lacks capacity. Where provided for by the order a Deputy will have authority to undertake ordinary “non contentious” tasks such as instructing a Solicitor to carry out conveyancing, managing leases, business and associated employment contracts, preparing tax returns, taking advice on tenancy liabilities and arranging care. Specific authority is required to conduct litigation on behalf of a protected party except where the contemplated litigation is in the Court of Protection in respect of a property and financial affairs issue. 

Deputies must also have regard to the Mental Capacity Act 2005 Code of Practice when taking any action as Deputy.

A Lasting Power of Attorney may be revoked by the Court of Protection in order to facilitate the appointment of a Deputy where the Attorney has mismanaged the Donors financial affairs (Re Harcourt).

It is important to note that Deputies do not have general authority to conduct litigation on behalf of the protected party and therefore will need the Courts approval should they wish to litigate on behalf of a Protected Person. 

Non contentious legal matters that are required to properly managed the protected parties estate will not generally require authorisation from the Court. A Deputy may instruct a solicitor to deal with non-contentious legal matter this could include matters such as advice concerning tax affairs, preparing tax returns, providing benfits advice to non contentious property law matters. 

Whilst the Court has warned Deputies against acting without authority and they should take note of this there maybe Deputies who have become involved in contentious litigation and the question arises what should the Deputy do to attempt to remedy the situation. The Deputy should make an application to the Court of Protection for retrospective authority to recover the costs from the protected parties funds. 

Can you Remove a Deputy?

It may come as no surprise that Deputies can be removed by the Court of Protection.

Deputies can be removed for several reasons, the most common of which are summarised below:

  • Professional Deputy not acting in your best interests
  • Deputy acting outside their power
  • Deputy appointment no longer necessary

Application for removal of Deputy

An application for the removal of a person validly appointed as a deputy does not invoke the same discretion as the initial appointment of a deputy.

Section 16(8) of the Mental Capacity Act 2005 provides that:

“The court may revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy has behaved, or is behaving in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or proposes to behave in a way that would contravene that authority or would not be in P’s best interests”

There is no modern authority in English Law that considers the criteria for applications to remove a Deputy however guidelines were set in the New South Wales case of Holt v The Protective Commissioner.

In Re P [2010] EWHC 1592 (COP) Mr Justice Hedley suggested that “the court ought to start from the position that, where family members offer themselves as deputies, then, in the absence of family dispute or other evidence that raises queries as to their willingness or capacity to carry out those functions, the court ought to approach such an application with considerable openness and sympathy.”

If you would like to discuss instructing us to make an application on your behalf, 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 in order to assist those self-isolating we can have meetings over Zoom or Skype. Please contact us for further information.

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Clodes Solicitors
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A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at #solicitor #local

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