At PSW we encourage our clients to plan ahead and consider entering into a Lasting Power of Attorney (LPA) to provide the security that the person or persons of their choice would act on their behalf should they become mentally incapable (please see related article “Lasting Powers of Attorney” for more information).

However, what happens if someone close to you has already lost mental capacity without having made an LPA (or earlier EPA)?  How can their affairs be dealt with and who is responsible for making decisions on their behalf?

The Mental Capacity Act (MCA) and the role of the Court of Protection (COP)

The aim and key principles of the MCA is to empower a person lacking mental capacity to make as many decisions as they can for themselves and also that any decisions made, or actions taken on their behalf by others, is in their best interests.

The role of the COP is to make decisions for those people who are unable to do so in accord with the provisions of the MCA.  They also have the power to appoint Deputies to act on behalf of those people.  A Deputy is responsible primarily for the day to day administration of their affairs and/or welfare decisions.

Becoming a Deputy

The most appropriate person to be appointed as a Deputy is often a close family member or friend, however a professional such as a solicitor may also be appointed.

The application procedure is lengthy and can take many months to conclude.  During this time it is often impossible to obtain access to a person’s assets which can make the practicalities of caring for them difficult.  It is therefore sensible to obtain advice and start the application process as soon as possible to minimise difficulties encountered.

The process involves making an application to the COP using one of a number of prescribed forms dependent upon the circumstances of the case.  The application pack will include the main application form, supporting information (such as details of the financial circumstances of the person lacking capacity), an assessment of capacity form (completed by a doctor or other medical professional) and a declaration by the intended deputy to allow the COP to assess their suitability and competency for the role.

Once the application has been made and “issued” by the COP then certain relatives and interested parties will need to be notified of the application.  The person who is the subject of the application  should also be notified in the most appropriate manner for them. 

If the application is relatively straightforward and there are no objections then the COP is likely to make an order to appoint the Deputy without the need for a hearing or any further queries being raised.

Being a Deputy

The Court Order will set out exactly what powers you have and also what the COP expects of you, and may include their specific requirements in relation to certain assets.  Once you are in receipt of the Order then you can register the Deputyship with all relevant organisations and financial institutions.  The Judge will also direct a Security Bond (insurance policy) is taken out to protect the person from financial loss that may occur through your handling of their affairs.  The premium payable is dependent upon the circumstances of the case.

As a Deputy you must have regard to the MCA and carry out the duties set out in the Act when undertaking matters on behalf of the person.   The MCA also imposes on a Deputy many obligations to safeguard the person.  A Deputy should keep the affairs of the person separate from their own and will need to keep detailed records and accounts to be submitted annually.  Deputies will also be supervised by the COP.

A Deputy is restricted to performing only those actions allowed under the Order so it may be necessary to make future applications to the COP during their deputyship, for specific powers such as preparing a statutory will on behalf of the person, or perhaps selling their house.

Because a Deputy is appointed by the COP rather than the individual at a time when they still have capacity, the process to become appointed and the supervision of the Deputy post-appointment is more onerous than that of an Attorney. It is far more preferable to appoint an Attorney by way of LPA as an insurance against ever being in a situation where you have lost capacity. However in circumstances where it is too late to achieve this then an application to the COP is necessary.

We can discuss with you any specific concerns you may have about someone close to you and offer guidance and assistance with regards to any applications to the Court of Protection.

For further information contact:
Helen Bunker helen.bunker@pswlaw.co.uk or Ruth O’Neill ruth.oneill@pswlaw.co.uk