If you or someone else has lost capacity (P), either by illness or an accident, unless P has appointed someone as their attorney under a lasting power of attorney, no-one is authorised to deal with their property. In these situations normally the next of kin would apply to the Court of Protection to become a deputy of P.
The Court of Protection would then look at the application and if they are satisfied that it would be in the best interests of P to appoint the applicant and all the formalities are complied with, then that person will become the deputy of P.
Two types of deputyship
There are two types of deputyship which the court may order, property and affairs and personal welfare. The order will usually confer general powers of management upon the deputy (however, if it is a deputyship for personal welfare, the general powers are generally more narrow).
Court of Protection Order
Generally the scope of the powers a deputy has depends of the Court of Protection Order. The order must:
- Confer powers on a deputy that are as limited in scope and duration as reasonably practicable in the circumstances;
- Impose any terms on a deputy’s appointment as it considers re in P’s best interest;
5 statutory principles
The Deputy is expected to carry out the duties with reference to the 5 statutory principles:
- P is assumed to have capacity unless it is established otherwise
- P is not to be treated as unable to make decisions unless all practical steps to help him are taken without success;
- P is not to be treated as unable to make a decision just because it is unwise;
- An act or decision under the MCA must be in P’s best interest
- Before the act or decision is made, the deputy is to consider whether the aim can be achieved in a less restrictive way to P
Property and Affairs – powers the court can grant under an order
- The control and management of P’s property
- The sale, exchange, charging, gift or other disposition of P’s property
- The acquisition of property in P’s name or on P’s behalf
- The carrying on, on P’s behalf, of any profession, trade or business;
- The taking of a decision which will have the effect of dissolving a partnership of which P is a member
- The carrying out of any contract entered into by P
- The discharge of P’s debts and of any of P’s obligations, whether legally enforceable or not;
- The conduct of legal proceedings in P’s name or on P’s behalf
Personal welfare – the powers the court can grant under an order
- Deciding where P is to live
- Deciding what contact, if any, P is to have with any specified persons
- Giving or refusing consent to the carrying out or continuation or a treatment by a person providing health care for P
If you would like to discuss applying for a deputyship or if you would like advice in relation to your duties as a deputy, please call our specialist Wills, Probate and Trusts solicitors in Leeds, Wakefield and London on 0113 244 9931.
