If my relative has lost mental capacity what are my options?
You may need to make decisions for a friend or relative who has lost their mental capacity to make decisions for themselves and where there is no Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is in place. The answer is to apply for a deputyship to the Court of Protection.
What is Deputyship?
A deputy is someone who is appointed by the Court of Protection to make decisions on behalf of someone who is unable to do so on his or her own.
Once appointed, a deputy is responsible for making decisions on behalf of the person who has lost capacity until either that person dies or is able to make decisions on his or her own again.
There are two distinct types of deputies: those who look after property and financial affairs and those who look after a person’s health and welfare.
Who can be a deputy?
The deputy is often a professional such as a solicitor or a representative of a local authority.
A deputy can also be a relative or close friend of the person who needs help making decisions. He or she must be aged over 18.
It is possible to appoint more than one person as a deputy?
If no one is willing or able to take on the role of deputy then The Court of Protection may appoint a ‘panel deputy’ - someone with specialist knowledge of mental capacity law - to look after the incapacitated person’s financial affairs.
How do you prove someone has lost capacity?
The Court of Protection refers to the to establish if someone can make their own decisions or not.
What if someone has capacity but is at risk of losing it?
The court will not appoint someone as deputy if a person is able to make his or her own decisions. If, for example, someone has the early signs of dementia, they should make a lasting power of attorney instead.
What Types of Deputyship are there?
There are two types of deputyship which the Court of Protection can grant:
- Deputyship for property and affairs
- Deputyship for personal welfare
What is the Court of Protection?
The Court is based in London and the decisions are made by district judges and but can sometimes be heard by High Court judges. The Court makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).
The Court is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
How do I choose which type of deputyship to apply for?
The type of deputyship you are given will depend on your particular circumstances and that of the person who lacks capacity and the process of managing money, property and personal welfare in the role of deputy can be an extremely complex and stressful time.
How do I apply for Deputyship?
Garner & Hancock can guide you the process and apply on your behalf to the Court of Protection.
Our specialised team can advise you on the processes involved in submitting an application to the Court of Protection and how an appointed deputy makes sure they fulfil the duties associated with this role.
How long will the process take?
The application process can take several months to complete but most creditors, nursing homes and utility companies are sympathetic to the procedures involved and will wait for payment as long as they are kept fully informed.
Will there be a court hearing?
Most often this it a paper only exercise. But if the matter is unusual or that someone has objected to the deputyship or more than one has shown interest than there is a court hearing. Garner & Hancock has experience in representing client's at Court.
What sort of things can and should a deputy be able to do once deputyship has been granted?
We can help you with your role as deputy and our services include:
- Applications to act as Trustee in the sale of jointly owned property where one owner lacks mental capacity
- Paying care home fees or for care
- Making decisions about healthcare
- Managing welfare benefits
- Completing tax returns
- Applying for a Statutory Will
- Making gifts
- Making decisions about accommodation
- Submitting the annual report to the Office of the Public Guardian
What happens once the Deputyship is granted by the court?
Deputyships need reviewing regularly because situations change and you may need to change your powers to take decisions. In the role of deputy your responsibilities are ongoing and your actions will be routinely monitored by the Office of the Public Guardian.
What if I do not wish to be a deputy?
Where an individual who does not have a friend or relative who wishes to take on the role of deputy, it might be appropriate for a professional to be appointed.
Our Elderly and Vulnerable Client team are all members of STEP and all act on your behalf and that of your loved one with sensitivity and professionalism.
If you would like some help or advice, then please feel free to call to arrange a conversation on 0208 232 9560, or drop us a note using the form below and we can book you a call with a solicitor.