Acting As A Deputy And What This Means

It is a commonly accepted truth that prevention is better than cure. In this context, acting as deputy, one could argue, one is left with the ‘cure’, as ‘prevention’ is no longer an option. What I mean by this is that each individual should, while they have their faculties, consider preparing a (Lasting) Power of Attorney, in which they choose a person or persons whom are trustworthy, to act for them in terms of handling their property and finances when they may no longer be able to.

However, when a Power of Attorney is not in place, and the individual has become mentally incapable, the only route generally available to the relatives is to apply to the Court of Protection for authority to act on that individual’s behalf, with the court’s consent and continued monitoring, this is called a Deputyship application. It is also possible to have an Appointee appointment to merely be the recipient of the individual’s state benefits.

The Court of Protection

The Court of Protection is there first and foremost to safeguard vulnerable individuals from financial abuse. Consequently, the paperwork required to be submitted to the court to commence an application is more detailed than that of a Power of Attorney application, comprising, among other things, the proposed deputy’s own personal declaration to the court that they will make a good candidate for deputy and will act at all times in that individual’s best interest. The application will also contain a form completed by a medical practitioner confirming that indeed the individual does lack mental capacity, this is a cornerstone element of the application as this establishes the court’s jurisdiction to become involved in the first instance and then consider the merits of the application, on behalf of the incapable individual.

The Court of Protection process can be lengthy and, in my experience, applications can seldom be expedited merely on the basis of financial hardship, i.e. bills need paying on behalf of the individual.

The Court of Protection process is, however, available to lay individuals and professionals, alike. Once commenced, one could say the Court of Protection becomes the three ‘Os’; omnipresent, omnipotent and omniscient. Once an application has been successful with the court, in that the court grants an Order to the proposed deputy, within the Order there are limits imposed on the deputy’s powers.

Deputyship application

Yes, they will have general authority granted to them to handle finances etc. and indeed make gifts to charities and/or family members in keeping with what that individual would have done while capable. But no more power or greater authority beyond that, so, for example if the deputy wishes to undertake estate planning advice with a view to changing the makeup of the individual’s assets or indeed it is necessary at some point to sell property belonging to the individual, as perhaps full time residential or nursing care is needed, these actions cannot be taken without the court’s consent and this may warrant an additional application to be submitted to the court, meaning the deputy is then further beholden to the court and any new Order made.

Once a deputy is handling the property and financial affairs on behalf of the incapable individual, they are required, yearly, to submit accounts to the court evidencing what they have done on the individual’s behalf with their finances. The detail and depth of the accounts to be submitted depends on the level of wealth in that individual’s estate.

Needless to say, granting a Power of Attorney, now, in which you are taking control over a possible event in the future when you may not have control, to choose your proposed person or persons to act for you, is highly preferable, and is indeed the best preventative measure.