Appointing a deputy when a person lacks capacity to appoint an attorney
Appointing a deputy when a person lacks capacity to appoint an attorney.If a person loses capacity to decide for themselves before having the opportunity to appoint an attorney to act for them under the terms of a Lasting Power of attorney, the answer to the problem of making decisions for that person is to apply to become a deputy at the Court of Protection.
Who can apply to be a deputy
You can apply to be a deputy if you’re 18 or over. Deputies are usually close relatives or friends of the person who needs help making decisions.
If you want to become a property and affairs deputy, you need to have the skills to make financial decisions for someone else.
The court can appoint 2 or more deputies for the same person.
How do deputies act together if there are more than one?
When there’s more than one deputy,the court will tell you how to make decisions if you’re not the only deputy. It will be either:
together (usually called ‘jointly’), which means all the deputies have to agree on the decision
separately or together (usually called ‘jointly and severally’), which means deputies can make decisions on their own or with other deputies
What are the duties of a deputy and how are they decided upon?
As a deputy, you’ll be authorised by the Court of Protection to make decisions on behalf of a person who now lacks capacity to look after herself.
There are 2 types of deputy:-
- Property and financial affairs, eg paying bills, organising a pension
2. personal welfare, eg making decisions about medical treatment and how someone is looked after
Reports, accounts and gifting duties while a deputy
When appointed a deputy you must write a report each year explaining the decisions you’ve made if you have a general level of supervision. You’ll be told when you need to send it to the Office of Public Guardian.
Your report must include:
- You may not be asked to write one if you have a minimal level of supervision.
- the reasons for your decisions and why they were in the best interests of the person you’re deputy for
- who else you spoke to and what they said was in the person’s best interests
- how you resolved any differences between what you and other people thought
If you don’t send the report when required, OPG may:
- increase the level of supervision
- ask the court to replace you with a different deputyAs a property and affairs deputy, you must fill in details of how you’ve managed the other person’s money in your annual report.
You must also keep copies of:
- bank statements
- contracts for services or tradespeople
- letters and emails about your activities as a deputy.
Your court order will say if you can buy gifts or give gifts of money on behalf of the other person, including donations to charities. It will also say if there’s an annual limit on how much money you can use for gifts.You must apply to the court of protection for approval of a proposed large one off gift, eg for Inheritance Tax purposes.You can claim expenses for things you must do to carry out your role as deputy, eg phone calls, postage and travel costs. You can’t claim:
- Gifts must be reasonable – you need to make sure any gifts don’t reduce the level of care the person you’re deputy for can afford.
- travel costs for social visits
- for the time spent carrying out your duties (unless you’re a professional deputy, eg a solicitor)
What does the court of protection need aside than application and payment of their fee?
You may be asked to give a detailed report of what you spent. You’ll have to pay the money back if OPG finds your expenses are unreasonable. They may ask the court to stop you being a deputy if they think you’ve been dishonest.
You will be asked by the court to take out a form of insurance to protect the finances of the person for whom you are deputy. This is called Security bond for property and affairs deputies.
You must pay a bond to a security bond provider to protect the finances of the person you’re a deputy for. You’ll get a letter from the court telling you how to do this. Prior to appointment notice of the application will need to be given to the person concerned and those close to them who may raise objections.
When can the deputy start to look after the affairs of the other person and how do they know the extent of their powers?
You’ll be sent a ‘court order’ telling you what you can and can’t do as a deputy. You can start acting on behalf of the person as soon as you’re appointed by the Court order if you’re a personal welfare deputy. You will have to secure the bond mentioned above about financial affairs.
You must send a copy of the order to banks etc to prove your authority but request that it is returned to you.
The order will explain the limits on your supervision and guidance in 2015 states:-
All new deputies will now be allocated to a general level of supervision in the first year of their deputyship.
Existing deputies, who manage the affairs of someone with assets below £21,000, will be placed into minimal supervision, unless there are any concerns about the case. If there are concerns, the case will receive a general level of supervision. When deputies manage the affairs of someone with assets above £21,000, these cases will also receive a general level of supervision.
Is there an alternative to being appointed a deputy?
It is possible to deal with an issue by creation of a trust settlement that is then approved by the Court but it is very much the exception and the disadvantage of a deputy appointment will need to be established.
How to apply to become a deputy.
There are a series of forms on the Court of Protection Web site here https://www.gov.uk/become-deputy/apply-deputy
Alternatively to completing the forms yourself you can instruct a solicitor to deal with the paperwork. If appointed by the Court you should be able to justify repayment to you of the expense from the resources of the person you will look after as deputy.
Find out more by contacting Stonehewer Moss solicitors, Citadel House, Solvey Road, Northwich Cheshire visit Stonehewermoss.co.uk or call 01606872200. Email email@example.com