Last time, we discussed Lasting Power of Attorneys v Deputyships and this month the focus will be on lay deputies.

The most important thing to reiterate is that at the point a person requires a Deputy, that person will have already ‘lost capacity’ and therefore would be unable to choose who their deputy is.

So if your spouse, partner or parent loses capacity and access to their funds is needed, providing you were willing, able and capable to do the role, you could apply to the Court to be appointed as their Deputy. However the ultimate decision would be that of the Court of Protection following your application.

There is a similar process in place for a Welfare Deputy however the Court does not often make these appointments or if they do it is usually decision specific.

The forms are available on the Court of Protection site and if you are applying for Property and Financial Affairs Deputy you will need to complete four documents:

1. The Application Form (COP1) – this says who the person is that has lost capacity and tells the Court about their personal circumstances.
2. The Financial Information Form (COP1a) – this list the assets of the person, including debts, wills, businesses etc…
3. The Capacity Assessment Form (COP3) – this form must be completed by a medical practitioner or someone with relevant experience in assessing mental capacity.
4. The Deputy’s Declaration (COP4) – this form relates to the person making the application and is the Deputy’s personal undertaking towards the Court and the person to whom the application relates. This includes the Deputy’s agreement to take on a number of duties and responsibilities and acting within prescribed standards.

Once the forms are completed, these are submitted to the Court along with the £400 application fee. There are remissions and exemptions available depending on the assets of the individual and you can apply for the discounts retrospectively, within six months of appointment.

Following the application process, there will be service responsibilities and once these are completed, the Court will issue you an order and you will be instructed to take out an insurance bond by the Court (they will provide you with details of bond providers) and pay the Office of the Public Guardian (OPG) the prescribed supervision fee.

So you have the Order, now what?

Your role from here will be to manage the person’s financial affairs, meeting their financial obligations, making best interests decisions about their money and property and where appropriate making sure that you involve the person whose money you are managing in decision making, where it is appropriate to do so. This last bit is very important as all Deputies must act in accordance with the principles of the Mental Capacity Act 2005, which you can read here.

It is important that you lodge the Order with the financial institutions where the person has assets. You should also contact the benefit agencies where relevant and if there have been debts accruing contact these companies too. You should use this opportunity to check the person is in receipt of the right income and has applied for relevant discounts (e.g. for council tax, water rates etc.)

It is fundamentally important as a deputy that you do not act outside the authority set out in the Order. This may mean that you have to apply to Court for further authority to make gifts, pay yourself for your services or the care you provide, sell the persons property or business or make investments.

All deputies are also obliged to report to the OPG every year on the anniversary date of the Order, as to the assets, income and expenditure of the person’s funds they manage. To this end, it essential that you open a separate bank account and never mix your own money in with the person’s you are managing. If you previously had a joint account with this person, consider changing this arrangement for transparency to the Court when it comes to the annual accounts.

It is acknowledged that the duties and responsibilities of a deputy are significant and there are firms out there who are able to support you – this can include the initial application or the annual reports – or even apply as a professional deputy instead where this is appropriate.

Here at Jackson Lees, we have an experienced solicitor who is also on the Court of Protection ‘panel Deputy’ list who works alongside a team of dedicated and knowledgeable solicitors, paralegals and administrators who would be able to provide you with support and assistance.

If you feel that you would like some guidance then please do not hesitate to contact our specialist Court of Protection team by clicking here for a call back or message us your enquiry.

Look out for next month’s article where we delve a bit deeper in to the duties of a Deputy.