In the UK, one in six of us over the age of 80 have dementia, and as we live longer the number of cases sets to increase. Whilst conversations with senior members of your family about their thoughts and wishes for care in later life might be difficult, perhaps Mental Health Awareness Week could be the perfect opportunity to trigger these conversations – when it comes to planning for the future, it is important that we make a choice, not take a chance.
Yesterday I looked at the importance of putting in place Lasting Powers of Attorney in the event that an individual loses mental capacity; they’re a little like an insurance policy – you hope you’ll never need it, but it’s invaluable when you do. But what happens when a Lasting Power of Attorney is not in place and you lose mental capacity?
In the absence of having a valid Power of Attorney in place, a friend, family member of professional can apply to be appointed as a Court of Protection deputy to look after the affairs of an individual if, as a consequence of not having mental capacity to do so, they are unable to do so make decisions on their own. These decisions can cover the individual’s property, financial affairs and health and welfare.
Deputyship applications are, by their very nature, arduous, time-consuming and expensive. However, they may be required in the absence of having a valid Lasting Power of Attorney in place.
The Court of Protection is a specialist Court which looks after individuals who lack capacity to make decisions for themselves. It is the Court of Protection who ultimately decides if an individual does not have capacity.
From a practical perspective, medical advice regarding an individual’s capacity, or lack thereof, will be sought from a medical professional, which is then presented to the Court as evidence. If such advice shows an individual lacks mental capacity, then such evidence will be persuasive to the Court.
Who can be appointed as a Deputy?
Anyone over the age of 18 can be appointed to be a Deputy; however, ordinarily the Court of Protection would appoint a family member or close friends, depending on the individual’s personal circumstances. It is unusual that the Court would appoint a stranger unless the person in question was a professional deputy.
What does a Deputy do?
A Property and Financial Affairs Deputy looks after someone’s financial affairs. This includes paying bills and dealing with bank accounts to selling that person’s house (subject to Court permission) if it is in their best interests to do so. The Court of Protection can also made orders in relation to specific Health and Welfare issues, including but not limited to, where a protected party should live, who they should live with and their care arrangements.
Unlike an Attorney acting under an LPA, a Deputy is required to account to the Office of the Public Guardian in relation to major decisions made in a deputyship period on a yearly basis. When compared to acting under an LPA, the process of doing so can appear more arduous and taxing on a Deputy.
Hay & Kilner LLP act as professional deputies and attorneys for a large number of clients, particularly in cases where our Clinical Negligence and Accident Compensation teams recover substantial amounts of money for clients who lack capacity; where families do not wish to undertake the role themselves; and where there is a dispute as to who in the family should be appointed.
For further information or advice in relation to Deputyships, please contact Tom Bridge on 0191 232 8345 or email firstname.lastname@example.org