There are two types of deputyship order which can be granted, either financial and/or health & welfare deputy. The Court of Protection is however on occasions reluctant to grant health & welfare deputyships; believing health and welfare decisions may be made in that person’s best interests without resorting to a deputyship. It is quite possible to appoint more than one deputy; acting either jointly (both deputies have to decide all decisions) or jointly and severally (deputies can decide together or independently of each other).
The court authorises the deputy to make financial decisions on behalf of the person lacking mental capacity. This is usually managing their bank account, their day to day finances or paying utility bills. It can also involve buying and selling property, making investments or gifts to particular individuals. Some matters do need to be referred to the Court of Protection for their confirmation.
The deputy application process is not complex, more involved.
With these applications we must draw to your attention the following points. It is quite rare for a Health & Welfare deputyship to be granted. Where the court does give permission for an application to be made, this requires drafting a specific witness statement in support of the application.
A health & welfare deputyship operates in a similar way to that of a Health & Welfare Lasting Power of Attorney. The court would grant authority to the deputy to make care, health and welfare on behalf the person lacking mental capacity. This might be; what sort of treatment they have, making decisions regarding the care they receive at home, which care home they go into if necessary and the type of care they receive. If there are any concerns about the care and treatment the person is receiving the health and welfare deputy can complain about these.
There is an idea that the next of kin can make care, health and welfare decisions, which is not the case in English law. They may be asked for their views, but these do not have to be followed by the health professionals.
When a deputyship application is made to the Court of Protection there is an application fee currently of £385.
Where an individual is currently in receipt of welfare benefits, which may total less than £12,000. They may qualify for either a remission or exemption of these fees, based upon either the types of welfare benefits they receives or their annual income. The Court of Protection requires evidence that they are in receipt of welfare benefits. This may be obtained from the Department for Works and Pensions (DWP). If you contact them they will send to the person concerned an up to date notice of the benefits they receive, which can be sent to the Court of Protection.
The process for creating a deputyship is to ask their doctor to complete a Court of Protection form COP3 stating they lack sufficient mental capacity. There may be a fee payable to the doctor for this assessment. We have found in the past that if the applicant, yourself approaches the doctor directly with the COP3, they may charge a reduced fee for completing the COP3.
The COP3 form together with the deputyship application forms are sent to the Court of Protection. It can take around 28 weeks for an application to be granted by the Court of Protection concerning the above issues. We have however recently noticed that the Court of Protection is turning around applications much faster. During the interim you may state that an application is being considered by the Court of Protection for the granting of a deputyship.
As part of the deputy application process there is an application form (COP1) to complete asking for details regarding the finances (COP1A) and types of health decisions (COP1B). We will provide these to you and go through the forms so you understand how they should be completed.
There is also a deputy’s declaration (COP4) which needs to be completed by each deputy. This is a declaration made to the court that the deputy is a suitable person to be appointed. From our perspective once the application has been received back from the Court of Protection we are obliged to serve notices on named individuals identified by yourselves to receive notice. These we will do at the appropriate time. We also are obliged to serve notice on them concerning the deputyship application.
It is possible under limited circumstances to make an urgent application. These are usually for situations where decisions or actions need to be made quite quickly and would be detrimental to the person concerned if they were delayed.
When someone becomes a deputy, that person must act in the best interests of the person they are making decisions on behalf of. They must have regard for the Mental Capacity Act’s Code of Practice. They are also obliged to act with reasonable care when making decisions for a vulnerable adult.