Family Law

If someone lacks mental capacity and does not have a valid Lasting Power of Attorney in place, it may be necessary for someone to apply to Court to become that person’s “Deputy” in order for decisions to be made for that person.

This process can take a long time, can cost a lot of money and doesn’t give the person who lacks mental capacity any say over who will make decisions on his or her behalf - this is why it is recommended that everyone puts Lasting Powers of Attorney in place. However, for one reason or another that does not always happen and so this note covers things to consider when a Deputyship Application may be needed.

As with Lasting Powers of Attorneys, there are two types of Deputy; property and financial affairs and personal welfare. However, the Court will usually only appoint a personal welfare deputy in exceptional circumstances. 

A court order will set out what a Deputy can and cannot do and each year a Deputy must report to the Office of the Public Guardian to explain the decisions they have made.

Broadly speaking, a Deputy must:

• be aged 18 or over
• can be appointed “jointly” or “jointly and severally” with another
• consider the person’s level of mental capacity each time they make a decision for them
• make sure it’s in the person’s best interests
• consider what they’ve done in the past
• apply a high standard of care
• do everything they can to help the person understand the decision
• add the decisions to their annual report

It is also possible for a professional to be appointed as a Deputy and the Court of Protection can appoint a “panel” Deputy if there is no-one else available.

It is worth noting that it is not necessary to apply to become a Deputy simply to manage a person’s benefits (you can apply to become and “Appointee” instead). It is also not necessary to apply to make a single decision (you can apply for a one off order instead).