Are you one of the 66% without a Will?
66% of adults in the East of England do not have a valid Will...- 10 October 2024
Posted: 17 May 2024
In recent years, the perceived stigma around mental health and health care issues have been alleviated. As a society we are more prepared to discuss and plan for our futures with this in mind. Increasingly, we are seeing clients requesting advice and assistance with regards to putting in place Lasting Powers of Attorney (LPA). If you are unsure on what an LPA is, in short it is a document that can be prepared, whilst you still have capacity, that appoints individuals to manage your financial or personal health decisions, when you are unable to. However, the question regularly asked is: what happens if you have not put in place an LPA? Well, this is where an application to the Court of Protection will need to be considered. Below, we will discuss some of the basics of this process.
There are many reasons why a person may not be able to manage their own financial affairs and/or make informed decisions about their personal welfare. In such cases, it could either be on a permanent or temporary basis, as a result of, but not limited to, an injury or physical impairment or mental illness. It may not always be a necessity to pursue a Deputyship Order, depending on the individuals’ circumstances and the decisions that need to be made. If you are unsure, please do not hesitate to get in touch to seek the necessary advice to protect and safeguard the person’s interests when they cannot.
A Court of Protection Order, in summary, is a legal document issued by the Court of Protection. It appoints one or more Deputies to make decisions on behalf of someone who lacks the capacity to make decisions themselves, at the time when certain decisions need to be made. This Order is sometimes called a Deputyship Order as well as Court of Protection Orders. Both mean the same.
When a person cannot give consent or authorise someone to make decisions for them, and there is no LPA already in place granting such authority. Then anyone who wishes to assist, can apply to the Court of Protection to be appointed as a Deputy. The Court will assess whether the appointment is approved and whether this is in the best interests of the person lacking capacity.
You can apply to the Court to be able to make decisions concerning the incapacitated person’s property and financial affairs, and as a separate order, their health and wellbeing. You can apply for one type of deputyship or both, depending on circumstances. There are two main types of application for a Deputy. These are a property and financial affairs application or a personal welfare application.
The Court of Protection Order will set out what the Deputy/Deputies can do. However, generally their duties and responsibilities, will involve most of the things that you can do. For example, paying bills, collecting pension and benefit payments, monitoring bank accounts, investments, etc.
If there is a property, a separate Court Order would need to be made to request the Court’s permission to deal with the property accordingly.
Again, the Court of Protection Order will set out what the Deputy/Deputies can do. If the application is successful, the Deputy/Deputies could made decisions about where the person lives, the care they receive, and their authority could extend to decisions relating to medical treatment.
An application to be appointed as a Personal Welfare Deputy will not usually be necessary. As most care decisions can be made by those involved in providing care, so long as they are acting in the person’s best interests. Nonetheless, there are certain circumstances such as, if the decision is difficult or complex. For example, it is unclear whether the proposed treatment is in the person’s best interests. Alternatively, if there are disputes with a course of action proposed and the dispute cannot be settled in any other way. As well as, if the person needs ongoing help with decisions relating to personal health and welfare. For example, where someone will live, whereby the Court of Protection may Grant such an Order.
An application to the Court of Protection to help someone who cannot make decisions for themselves can be for either Property and Financial Affairs or for Personal Welfare decisions. These applications could be for a one-off or for long-term decisions. An application also be made on either an urgent or non-urgent basis.
So, who can be a Deputy? Usually, a Deputy will be a close family member or friend (referred to as a ‘lay deputy.’) Someone who is able and willing to act and carry out the duties and responsibilities of a Deputy. A Deputy should be able to have the sufficient skills to take on the role and responsibilities that it entails. The Court will require the applicant(s) to complete a deputy declaration to ensure they accept and understand their responsibilities. In certain cases, however, a professional Deputy may be appointed, such as a solicitor, the Local Authority. Alternatively, if there is no one, a Court appointed Panel Deputy would be appointed.
Any professional Deputy appointed is entitled to be paid as a Deputy from the persons funds, whereas lay Deputies can only be paid for out-of-pocket expenses.
Anyone can apply be a Deputy, but they must be:
It is also worth noting that you do not have to manage the Deputyship alone. It is generally recommended to appoint at least a few Deputies. Although not too many, as you know what they say about too many chefs. The reason for this recommendation, is to protect the Deputyship from unavoidable circumstances. Such as the sole Deputy predeceasing the individual who lacks capacity to make decisions themselves or needing to be discharged from their duties.
If more than one person is applying to become a Deputy. Then the Court will decide how the Deputies are to act when making decisions for that person. Plus, the court will confirm within the order whether such decisions are to be made Jointly (all decisions made unanimously) or Jointly and Severally’ (each Deputy has the right to make decisions individually or together).
Well, as mentioned, to become a Deputy you will need to apply to the Court of Protection or the Court Order. The application process requires completing the required forms. These include an application form, supporting information form and an assessment of capacity form. In addition, a deputy’s declaration form will need to be completed by all the proposed deputies.
Once the Court has received the relevant application papers, and the application fee (which is currently £408.00 unless you are applying for a fee exemption or remission.) The Court of Protection will notify you of the next steps in relation the process. This will includes providing notification to the person who does not have capacity, as well as anyone who needs to be kept informed. This must be completed within 14 days of the issue date. There are various forms and processes which therefore need to be followed and strict timescales for completing such tasks.
The Court of Protection will finally review the application and confirm.
1) If application has been approved or rejected,
2) if further information to support the application if required
3) if it is going to hold a hearing to get more information, for example if someone objected.
Once the Court has made a decision, they will issue a Court Order accordingly. You will be required to pay and set up a ‘security bond’ before you can be appointed as a Property and Affairs deputy. This is a type of insurance that protects the finances of the person you are a Deputy for.
Appointing a Deputy is not a quick process. Once the necessary forms and documents are complete and submitted to the Court of Protection, an application can take between 4 and 9 months for a Deputy to be appointed. It can take even longer if the Court needs more information to decide the application or question being proposed to them.
In very urgent cases, you can ask the Court to grant an interim order, for example, to access funds to pay debts or for the sale of a property.
Once the Court of Protection has issued the Court Order, as a Deputy you will have many responsibilities and duties. One such obligation is that as a Deputy, you will be required to submit annual reports to show that you are acting in the person’s best interest and what decisions and actions you have taken for that year. It is therefore important that records are kept. In addition, when acting as a Deputy, you will be required to pay annual supervision fees, which currently, the general supervision is £320 per annum and minimal supervision is £35 per annum. However, please be mindful that these costs could change. Further, you will also need to pay a £100 assessment fee if you are a new Deputy. Beyond this, there are further obligations and responsibilities for Deputies.
Now you have some of information you may need on the topic, the last question to ask is . . .
At THB Solicitors we aim to make the process of making a Deputyship Order as easy as possible. We offer a free consultation to discuss your wishes, with one of our Solicitors, before taking your instructions and then sending you a draft to read at home. Once you are happy with the contents, a second meeting is held to sign the Order.
For more information or to make your appointment please contact our team today on team today on 01702 298282 or 01245 493959. Instructions can be taken by email, telephone, or face to face appointment in our offices. We also offer home and hospital visits.
- 10 October 2024
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- 20 September 2024
