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Making plans for your future includes considering arrangements for if you lose mental capacity to manage your day to day property and affairs. We would strongly recommend you draw up a Lasting Power of Attorney for Property and Affairs so that your wishes are adhered to should this happen to you. However, should this, or an Enduring Power of Attorney, not be in place, then an application to the Court of Protection will be necessary. They will then appoint a Deputy to manage these affairs on your behalf.
The importance of a Lasting Power of Attorney is that you appoint who this person is to be; the person who the Court of Protection appoints may not be the person you would wish. Find out more about a Lasting Power of Attorney by visiting our Planning for your Future page or find out more about the involvement of the Court of Protection through the bullet points below.
What are the duties of the Deputy?
Once the Court of Protection has appointed them, the Deputy will be responsible for the management of your assets and must act in your best interests, having regard to your wishes.
A prospective Deputy must give careful consideration as to whether or not they are willing to take on the role as it can be onerous and time consuming.
Choice of Deputy
Any person can apply to be Deputy as long as they are aged 18 or over and it is usually a close family member.
However, it is ultimately the Court of Protection's decision where a Lasting Power of Attorney is not present, and they must make the appointment in your best interests. If your spouse is advancing in years, they may not feel up to taking on the role of Deputy and it may be preferable to appoint a younger family member, perhaps an adult child.
If you have no relatives or your relatives are not willing to act, then a friend, neighbour, solicitor, other professional advisor or an officer of the local social services may be appointed.
Joint and successive appointments
Occasionally applications are made for the appointment of more than one Deputy, which is becoming more common and are usually on a joint and several basis so that the Deputies can act together or individually.
If your elderly spouse is appointed as Deputy, it is sensible for an adult child to also be appointed so that the Deputyship can continue uninterrupted if your spouse becomes unable to act or dies.
What is the procedure for applying to the Court of Protection?
Prescribed application forms must be completed (including a medical certificate) and submitted to the Court together with a fee for £385 as the application fee. Proceedings are not officially started until the Court issues the application and time limits are by reference to the date of issue of the application.
As the person to whom the application relates, you must be personally notified by the applicant that the application has been issued. They must also notify any other persons who have been named in the application; usually close family members.
How does the Court appoint a Deputy?
Unless the application gives rise to any objections, the Court will proceed to issue an order appointing the Deputy and will detail the scope of the Deputy's authority to act. It takes approximately four to five months for the order to be issued with a fee of £100 per Deputy payable on the appointment being made.
As part of the Court procedure the Deputy will have to arrange a security bond and pay an annual premium. The Deputy is not personally responsible for the annual premium but this will be paid from your assets as the person being represented by the Deputy.
The Court will only issue the order once it has received confirmation from the security provider that the security bond is in place. The Court will send a letter to your prospective Deputy confirming the Court's intention to make the order and they will instruct how to put the security bond in place.
The Court requires the Deputy to give such security as the Court thinks fit for the discharge of his/her functions. The purpose of the security is to ensure that in the event of default by the Deputy, you do not suffer financially. In most cases, the security is provided by the Deputy entering into a bond provided by the Office of the Public Guardian through insurance brokers. The payment of the premiums on the bond will be allowed by the Court out of your estate as the person needing the Deputy.
The Deputy must also notify you for a second time to confirm that a final court order has been made.
Supervision of a Deputy
Once the Court has made an order appointing the Deputy, the Office of the Public Guardian is required to determine the level of supervision required and the Office of the Public Guardian will charge an annual supervision fee of £320.
The Office of the Public Guardian supervises the Deputy appointed by the Court to ensure that they are carrying out their functions properly. The Deputy must submit an annual account in a mandatory form showing that they have accounted for the person's money and property and acted in their best interests. This requires sophisticated record keeping with the amount of formal supervision required in a particular case being set by the Office of the Public Guardian.
As you can see, the process of applying for a Deputy to manage your affairs should you lose capacity through the Court of Protection is a costly and lengthy one, which can be avoided by the drawing up of a Lasting Power of Attorney. However, if this is not in place we are able to support your Deputy(s) in their responsibilities.
As well as a Lasting Power of Attorney, there is also the option of having an Advanced Directive, which is more specific than an LPA when it comes to future treatments. For more information on Advanced Directive's click here.
Contact us to answer any further questions by calling 01329 222075 or emailing privateclientenquiry@warnergoodman.co.uk.
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