There is a lot of information in the media about the importance of making Lasting Powers of Attorney (LPA) but what happens if your loved one loses mental capacity but has not made an LPA? There is an alternative available for families in this circumstance which involves a family member or others making an application to the Court of Protection to become a deputy.
What is a deputy?
A deputy is an individual or individuals who are appointed by the Court of Protection to manage the financial and/or health decisions of an individual who has lost mental capacity.
Who can apply?
The court decides who can be appointed as a deputy but in the majority of cases they will be an adult family member or close friend of the incapable person. In the event that the incapable person does not have an appropriate person to act for them, the court will appoint a professional deputy from their list of panel deputies.
How can I become a deputy?
In order to become a deputy, an application must be submitted to the Court of Protection. In the case of an application to manage the financial affairs of the incapable person, the financial information for the incapable person must be collated and submitted. The court will also require the submission of a medical report that confirms that the incapable person has, in fact, lost their mental capacity.
The court will wish to know other information such as whether the incapable person runs a business or whether they have made a will.
Once the court has all of the information they require they will consider the application and then produce an order setting out who the deputy is and how they must act.
What can I do as a deputy?
The order issued by the court will set out any specific permissions dependent on the circumstances but generally:
- All decisions must be in the vulnerable person’s best interests
- The deputy must only act within their remit
- The deputy must act in accordance with the Mental Capacity Act 2005 and its code of practice
What can’t I do as a deputy?
In the case of a deputy appointed over financial matters they cannot:
- Make or amend a will for the vulnerable person
- Make large gifts from the vulnerable person’s money
- Hold money or property in their own name for the benefit of the vulnerable person
This is not an exhaustive list and so if you have any concerns regarding whether you can take a course of action then our Private Client team would be happy to advise.
How long does the application take?
Due to the amount of paperwork involved and the fact that there is court involvement, the process can take anything from four to six months and there is no guarantee that the application will be successful.