When someone is planning for their future, they might choose to put a Lasting Power of Attorney in place to look after their finances or the way they are cared for when they no longer have the mental capacity to make those decisions for themselves.
However, if they have not done this, then it can make the situation complicated as no one has the legal right to make those decisions. This means that you might need to apply to become someone's Deputy if they have lost the mental capacity to make the important decisions in life.
At Loveday Solicitors, our Derbyshire based team will be able to help you understand the role of being a Deputy and take you through the process of applying for it. We have years of experience in this field, and we will ensure that your case is always dealt with sensitively as well as professionally.
Understanding Deputyship
A Deputy is someone who can make decisions on behalf of someone else who does not have the mental capacity to do this. This might be due to a long term and degenerative illness such as dementia or is the result of a serious brain injury. It may also be necessary if they suffer from severe learning disabilities. A Deputy can be authorised by the Court of Protection to make decisions on property and financial affairs or personal welfare.
It is important to remember that a Deputy's powers are far more limited in comparison to an attorney. When setting up a Lasting Power of Attorney, it is the person needing the care or support who makes the decisions on who that should be and what they want.
However, when a Deputyship Order is put in place, it is decided on by the courts. A Deputy will therefore be more closely supervised than attorneys and will need to report to the Court of Protection. The court will try to support you in your role, but you can also seek advice from specialist solicitors like those that Lovedays Solicitors.
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Types of Deputyship
Property and Financial Affairs Deputyship
If you apply to be a Property and Financial Affairs Deputy then you will be responsible for things like paying the bills of the person in question or organising their pension. You may also be required to manage their bank accounts and investments and make decisions relating to property, sales or other financial transactions.
You will be in charge of all of their day-to-day expenses and will be required to make sure that they are in receipt of all income that they are eligible for, whether this is benefits, pensions, or any other sort of income. You will require specific authority within the Deputyship Order to buy or sell property. And you may also have the authority to make small gifts on special occasions like birthdays.
Personal Welfare Deputyship
A personal welfare Deputy can make decisions about a person's health care as well as where they live, who they can have contact with, what they should wear, what they eat and all the things necessary for general care and well-being. You will also be in a position to make decisions on their medical treatment and the way in which they are looked after. It is important to note that you cannot become someone's personal welfare Deputy if they're under the age of 16.
A Personal Welfare Deputy will usually be appointed if there is doubt over whether decisions will be made in the best interests of the person or because someone needs to be appointed to make decisions about a specific issue over a period of time.
Applying for Deputyship
You can apply to be a Property and Financial Affairs Deputy as well as a Personal Welfare Deputy if you wish. To apply, you will need to be 18 or over. Deputies are generally close friends or relatives of the person who needs help. When applying to be a Property and Financial Affairs Deputy, it is important to demonstrate that you have the necessary skills to make financial decisions on someone else's behalf. The court may also appoint two or more deputies for the same person, and you will need to show the court that you intend to make decisions together as part of a ‘joint Deputyship’, or separately or together, known as ‘jointly and severally’. This means deputies can make decisions on their own or in conjunction with other deputies.
If you are applying to be a Personal Welfare Deputy then you will need to complete an application form as well as an Assessment of Capacity, Deputy’s Declaration and Supporting Information form. As part of this, you must name at least three people who know the person that you are applying to be Deputy for. You will then need to send these forms within the application form to the Court of Protection and tell the people that you have named in the application.
If you wish to be a Property and Financial Affairs Deputy, then you must tell the person that you are applying to be a Deputy for, and ask them to complete the relevant forms if they are capable of doing so. You will also need to tell at least three people connected to your application and ask them to complete the forms too before submitting them.
Responsibilities of a Deputy
When you become a Deputy for someone, you take on a lot of responsibility. It is your job to help them make decisions, automate decisions on their behalf. When doing this, you must consider their level of mental capacity every single time, and you must not assume that their mental capacity will be the same at every time or on every matter. When you were made a Deputy, you will receive a court order from the Court of Protection. This will outline exactly what you can and cannot do, and there are also a number of rules set out in the Mental Capacity Act 2005.
Whenever you make decisions on behalf of someone else, it is important that you ensure it is always in their best interests. You can do this by considering what they have done in the past, and ensuring that you do all you can to help them understand the decisions.
It is important that you keep records of everything that you do. This will include keeping detailed records of all financial transactions. You will also need to write a report each year to explain the decisions that you have made.
This should include the reasons for the decisions that you made and why they're considered to be in the best interest of the person you are Deputy for. You should state exactly who you spoke to and why. They also agreed that your actions were in the best interest of the person concerned. You will also need to include the finances of the person if you are their property and financial Deputy.
When you are a Deputy, you must not restrain the person unless you are stopping them from coming to harm and you cannot stop any life sustaining medical treatment. You cannot take advantage of the person's situation or make a will or change their will in any way.
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Common Issues and Solutions
When you are a Deputy, you might find yourself in challenging situations from time to time and it is important that you understand how to handle this. There may be a time where a Deputy is at odds with family members. It is important to always try and maintain a good relationship between a Deputy and family member wherever possible.
Family members may not agree with the decisions that are being made, or they may feel that the Deputy is misusing their power in some way. It is important to try and resolve any issues between deputies and family members as quickly as possible and this can often be done by sitting down together and having an open conversation about the situation.
If a family member is concerned about the care their loved one is receiving or that their funds are not being used properly, then they can apply to the courts. If it is felt that a Deputy is abusing their position, then the Court of Protection may remove a Deputyship from someone who is failing to act in the best interests of the individual.
Sometimes a Deputy may feel that they're not able to continue in their position. This might be due to changes in their own personal life or because they are not able to maintain a good working relationship with other family members. In this case you will need to apply to the Court of Protection with any supporting evidence. In order to bring your Deputyship to an end. It is important to remember that you cannot stop being a Deputy until you have the relevant court order in place.
Support from Lovedays Solicitors
Lovedays Solicitors are very experienced when it comes to applying for Deputyship or managing it. Our team can help you to understand what the role involves and whether you are best suited to it. If you wish to apply to become a Deputy, we can take you through the entire application process. This involves helping you to complete the forms and pull together any necessary documentation to support your case. We can also help you to reach out to other individuals who are involved in the care or management of someone in order to get their support.
There may also be complex cases where family members are unable to act, and so we can provide professional Deputy services on your behalf. Our team has all the skills and experience necessary to complete this role and will always do so with a great deal of sensitivity, keeping the best interests of the person involved at the heart of everything we do.
We offer ongoing support to anybody who is acting as a Deputy. This means that we can also assist with the yearly reporting requirements to ensure everything is completed correctly and submitted to the Court of Protection. We understand that being a Deputy can be a big responsibility and so we are here to help you throughout the entire process.
Conclusion
When no Lasting Power of Attorney has been assigned, it comes down to a Deputy to help manage the care, welfare and financial responsibilities of an individual who is no longer able to do this for themselves. This can be a complex situation which can span many years and so it is important that it is all done properly. The specialist solicitors at Loveday Solicitors can help you to apply for Deputyship and manage it for many years to come. Our vast expertise means we are in the best position to support and advise you no matter what your needs might be. Get in touch with our expert team now to find out more about becoming a Deputy.
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