A deputyship order is a type of court order.  It is granted by the Court of Protection in England and Wales, and it authorises a named person (known as a “deputy”) to make decisions on behalf of someone who lacks mental capacity to make those decisions themselves. A deputyship order is necessary when an individual is unable to manage their own affairs due to a lack of mental capacity, and there are no other measures, such as a lasting power of attorney, already in place.

Types of Deputyship Orders

There are two main types of deputyship orders:

  1. Property and Financial Affairs Deputyship: This allows the deputy to manage the financial affairs of the person who lacks capacity. Responsibilities might include paying bills, managing bank accounts, collecting benefits, and selling or buying property.
  2. Personal Welfare Deputyship: This type covers decisions about the person’s daily routine, which includes medical treatment, and living arrangements. Welfare deputyships are less commonly granted and usually only in cases where there is a specific need for ongoing decisions in these areas, and there are contentious issues about care or serious medical treatment.

When is a Deputyship Order Necessary?

A deputyship order may be necessary when:

  • No Lasting Power of Attorney (LPA) is in Place: If an individual has not made an LPA before losing capacity, and there are significant decisions to be made regarding their property, financial affairs, or personal welfare, a deputyship may be required.
  • Decisions Beyond the Scope of an LPA: Even if an LPA exists, it might not cover all decisions that need to be made. The person making the power might have included restrictions on the attorneys authority which prevents them from making a decision about that particular matter.  There may be disputes or complexities that require the intervention of the court of protection who might cancel the attorney’s authority and appoint a deputy.
  • Ongoing Decision-Making Required: In cases where continuous decision-making is needed, and it is impractical or inappropriate for one-time decisions or informal arrangements.

Applying for a Deputyship Order

The process of applying for a deputyship involves several steps:

  1. Application to the Court of Protection: This includes completing specific forms detailing the person’s circumstances and the need for a deputyship.
  2. Medical Evidence: A medical assessment must be provided to prove that the individual lacks the mental capacity to manage their own affairs.
  3. Notifications: Family members and other interested parties must be notified of the application, allowing them the opportunity to object or provide their input.
  4. Court Decision: The Court of Protection will review the application, and if all requirements are met, they will issue the deputyship order. The court may also provide specific instructions or limitations in the order to ensure that the deputy acts in the best interests of the individual.

Applications can be complicated and many people use a solicitor with court of protection experience to assist them and to ensure that the process is as smooth as possible.

Responsibilities of a Deputy

The primary duty of a deputy is to make decisions in the best interests for the person for whom they have been appointed, when that person does not have mental capacity to make the decision themselves.  Deputies are required to adhere to the principles, guidelines and limitations contained in the Mental Capacity Act 2005 and the Code of Practice. All deputies’ are supervised by the Office of the Public Guardian.  Their actions and decisions are scrutinised to make sure that they are being made in accordance with the law and that financial management is scrupulous.  Deputies must keep accurate records of all their decisions and transactions. As part of their supervision, deputies must submit annual reports within a specified period of time, to the Office of the Public Guardian, outlining their management of the individual’s affairs and providing a full set of accounts showing all financial transactions during the previous twelve months.

A deputyship order is a significant responsibility and is not taken lightly by the courts. It is granted only when necessary to protect the rights and welfare of someone who cannot make important decisions for themselves.

Speak to Edward Lee

Edward is a Partner at Wollens and can advise you. Contact Edward via email edward.lee@wollens.co.uk or call 01803 225155.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.