"A man can do all things if he but wills them."
Leon Battista Alberti
Legal specialist in providing Later Life estate planning solutions and advising vulnerable clients.
When should a Deputyship Order be applied for?
Gavin says: ‘If a person lacks mental capacity, their affairs are complex and they have assets that need looking after, a deputyship order should be considered.’
1. What is a deputyship order?
The Mental Capacity Act 2005 allows the Court of Protection to appoint a person known as a deputy to manage the affairs of a vulnerable person who lacks mental capacity. Such an appointment is normally to manage a vulnerable person’s financial affairs. Only in rare occasions, where the court deems it fit, will it appoint a deputy to manage a person’s health and welfare affairs.
2. What does it mean to lack mental capacity?
Simply put, it can be said that mental capacity is a person’s ability to be able to do a particular thing. This would also include the ability to carry out legal acts, e.g., such as, entering into a contract of marriage, purchasing a property, etc. Therefore, to lack the mental capacity to carry out a particular act means you no longer have the ability to be able to do that thing. Where this is suspected of a vulnerable person, medical evidence of this should be obtained.
3. What is the difference between a Lasting Power of Attorney and a Deputyship Order?
The Mental Capacity Act 2005, amongst other things, allows a person who has mental capacity to plan ahead and appoint an attorney manage his affairs under a Lasting Power of Attorney. However, if a person lacks mental capacity, the Mental Capacity Act also gives the Court of Protection the authority to appoint a deputy to look after that person’s affairs.
A deputy is closely supervised by the Office of the Public Guardian, the administration arm of the Court of Protection, and is expected to produce an annual report of their dealings with the vulnerable person’s financial affairs.
An attorney appointed in a Lasting Power of Attorney, by contrast, is not required to submit an annual report, unless the authority in the Lasting Power of Attorney requires him to do so. Attorneys, like deputies, can be removed, or be sanctioned. The Office of the Public Guardian will also investigate safeguarding complaints.
As far as costs are concerned, when applying to have a deputy appointed, it, at least, involves a court application fee, an annual deputyship supervision fee and an annual fee for taking out the deputy’s security bond. By contrast, a Lasting Power of Attorney only has an initial registration fee. These aforementioned fees, however, are apart from the legal fees you would have to pay a lawyer to help you set up these legal instruments.
4. Deciding whether a deputyship order is necessary
When a person who lacks mental capacity has a modest amount of assets (for example, consisting of social security benefits and a small government pension) the cost of appointing and having a deputy manage that person’s affairs may not be cost effective. In such a case, a possible solution to this, is the Department of Works and Pensions may consider appointing someone as an appointee, who will receive the benefits and the pension on behalf of the vulnerable person. Where such a vulnerable person’s affairs are more complexed or they have a substantial amount of assets, then the appointment of a deputy may be more appropriate.
Mostly, the court will consider appointing a family member as a deputy but where the court deems it necessary, or it considers the vulnerable person’s affairs complicated, they may decide to appoint a professional who they feel would best be able to manage the person’s affairs.
If you need to speak to a lawyer about a vulnerable person who lack mental capacity and who needs help applying for a deputyship order, you can contact Gavin on 01404813676 or on email at firstname.lastname@example.org