LEGAL EAGLE: Should I apply for Deputyship?

Where a person does not have mental capacity to make important decisions because for example of a condition such as dementia, an accident causing a brain injury or a learning disability there is often a need for someone else to make those decisions on their behalf.

If the person lacking capacity has not already made provision for someone to manage their affairs by making a Lasting Power of Attorney (see below) then the Court of Protection may appoint a person to manage the incapacitated person’s affairs. Such a person is called a Deputy. It is presumably because the social worker is aware that your mother lacks capacity to make such decisions that they have advised you to make a Deputyship application.

There are two types of Deputyship:

A Property and Affairs Deputyship is required to manage a person’s finances including accessing bank accounts or investments, or for selling a property.

A Health and Welfare Deputyship allows decisions to be made about personal welfare, for example what medical treatment they should receive, where they will live or who they will have contact with.

Property and Affairs Deputyships are common, but the Court of Protection makes very few Health and Welfare Deputyships, preferring to deal with disputes about health and welfare of an incapacitated person itself.

Before appointing a Deputy the Court of Protection must be satisfied that the person concerned lacks the relevant capacity, that the proposed Deputy is a suitable person, and that there is good reason for the application. The Court of Protection’s website (https://www.gov.uk/apply-to-the-court-of-protection) contains guidance and links to the necessary application forms. Alternatively a solicitor will be able to make the application for you.

As an appointed deputy you will be required to submit annual accounts of your expenditure.

A person who still has capacity to do so may make a Lasting Power of Attorney (LPA). This allows the person making it to appoint someone to make important decisions for them in the future, so that if a time comes when they are unable to make decisions for themselves someone they trust is in place to decide what is best for them. LPAs, which again may relate to either Property and Financial Affairs, or Health and Welfare, are cheaper to make, more flexible and less subject to restrictions and supervision than Deputyships. An LPA is not an option for your mother if she already lacks mental capacity to make one.