In her second article this month, Hilary Buckle, Head of Private Client, examines the options for concerned friends and relatives when potential welfare issues are identified, but a person already lacks capacity.
- What is a Deputyship?
- How to apply for apply for Deputyship
- What happens next?
The Private Client Department is often instructed by clients concerned about their vulnerable friends or relatives, whom I shall refer to as P, and are seeking advice on how assist them in managing their personal or financial affairs. If P still has capacity when we are approached, we would strongly advise them to make a Lasting Power of Attorney, which enables them to appoint an attorney who can provide assistance in their affairs.
However, many of our clients may have already lost capacity when the problem is identified, meaning they are unable to make an LPA. In this situation, the only way properly to protect a vulnerable person is to apply for a Deputyship, which is a legal procedure in which the Court appoints an individual to look after a vulnerable person’s affairs on its behalf. There are two types of Deputyship, a Property and Financial Affairs Deputy and a Personal Welfare Deputy. An application to the Court can be for one or both types of Deputyship.
Deputyships are made by the Court of Protection, which is a special type of Court in which judges makes decisions about the welfare of people who have lost capacity. Most Deputyship applications are decided without the need for a hearing, so it is unlikely there will need to be a Court hearing unless there is a dispute. Nevertheless applying for a Deputyship is a decision that should not be taken lightly, as Deputies must produce an annual report to the Court and prove that they are acting in the best interests of the vulnerable person.
To apply for a Deputyship, the applicant must fill in a number of forms about themselves and the person for whom the Deputyship is required- known as P in the proceedings. They must also identify interested parties to become involved in the application, either as a respondent, who has a direct interest, or as a notified party, who may not have a direct interest but should be told about the proceedings. The applicant must also ask a relevant practitioner, such as a doctor or social worker, to complete an assessment of capacity. Unlike other Court proceedings, in order for the Court to exercise its Deputyship powers it must be satisfied that P lacks capacity to look after themselves. The assessment is the document that assists the Court in deciding this issue. The applicants must also make a series of undertakings- i.e. promises- to the Court to that they will look after P’s affairs appropriately and that their decisions will be in P’s best interests. Once all this is complete, the application can be sent to the Court and issued, starting the proceedings.
The Court will then return the application to you and instruct you to inform the necessary parties. If someone is named as a Respondent, you must then send them a copy of the whole application, known as service. If someone is only to be notified, then they are sent a form telling them an application has been made, without the full details and inviting them to comment on it. P must also be told of the application. Notified parties will then have a time limit, set by law to decide what to do. In the event that no-one objects the application will be referred to a judge for a decision. If someone objects, the Court will commence its case management protocol to manage the case through to a final hearing.
For advice on whether a Deputyship is appropriate, or if you have been informed about an application and are considering how to respond, Hilary Buckle and her experienced Private Client Team will be pleased to assist you. Please call 0118 958 9711 to arrange a confidential meeting with one of our team or use the booking form to arrange a one hour fixed-fee consultation for just £95.