What is Deputyship?
A Deputy is one or more people appointed by the Court of Protection (CoP) to make decisions on behalf of another who cannot do so themselves. Importantly, the CoP only deals with applications for people who do not have a valid Lasting Power of Attorney or Enduring Power of Attorney in place.
The deputyship appointment can cover property and financial affairs but also health and welfare matters. These could include decisions about where that person lives, what they wear or eat, and medical treatment. The CoP is reluctant to grant health and welfare deputyship orders, so these are relatively rare compared to financial orders.
What is the Court of Protection?
The Court of Protection’s role is often misunderstood. Negative commentators have labelled it a “Secret Court” that makes sweeping decisions about people’s lives. In reality, the CoP's jurisdiction is broad, but most individuals only encounter it when they need to make a “Deputyship” application.
What does the Court of Protection do?
The CoP makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made.
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
Who makes an application for a Deputyship order?
When it comes to involvement with the Court of Protection, it's often family members who initiate the proceedings. Certain others may have the right to be notified. It's important to understand that sometimes matters are dealt with behind closed doors, or reporting restrictions can be imposed, but only for valid reasons. This is a standard practice across the entire Court system, aimed at ensuring the privacy and protection of those involved.
However, it is fair to criticise the CoP for its slow pace of work, bureaucracy, and high fees. These negatives mean it is best to avoid involvement with Deputyship and the CoP if possible.
The good news is that it’s easy to avoid contact and involvement with the CoP. You should take control of your future by making Lasting Powers of Attorney while you are fit and well. We all hope we will never have a serious accident or illness, but if we do, Lasting Powers of Attorney are invaluable. They give you control over decisions about property and financial affairs, even if you can't communicate these yourself. Instead, the people you trust will do this for you.
How much does a Deputyship application cost?
If a Deputyship application is necessary, several long forms must be completed. The Court allows legal advisers a fixed fee of £950 plus VAT for applying and obtaining the Deputyship Order. Typically, your family could expect to pay between £1,500 and £3,000 plus VAT and costs. These fees can be taken from your savings.
“Work up to and including the date upon which the court makes an order appointing a deputy for property and affairs.
An amount not exceeding £950 (plus VAT)
Applications under ... the Trustee Act 1925 or ... the Trusts of Land and Appointment of Trustees Act 1996 for the appointment of a new trustee in the place of ‘P’ and applications under section 18(1)(j) of the Mental Capacity Act 2005 for authority to exercise any power vested in P, ...
An amount not exceeding £500 (plus VAT)”
There is also an application fee of £408 (in 2024). If the CoP holds a hearing, there’s a fee of £494, too. If an appeal is necessary, the fee is £257.
A formal assessment of the mental capacity of the subject of the application must be obtained. Mental capacity advocate firms often charge £600 - £1000 in fees for these.
The Court of Protection processes the application, which takes many months. Frequently, this can be 6 months to a year, even in the most straightforward cases. The CoP can also ask for additional information or steps to be taken, which slow down applications further.
Meanwhile, making financial decisions for the person who needs support is impossible. Their assets are in limbo. It might not be possible to make healthcare decisions either.
Once appointed, a Deputy has to prepare regular accounts of their dealings and put in place an insurance bond to cover misconduct/negligence by them. A premium for this is due annually and usually runs into hundreds of pounds. The Deputy may also have to seek further court orders to do certain things, such as sell a property. Such applications incur more costs and take time.
These are in addition to any legal fees that a Deputy may incur, which are paid from the subject’s assets, as are the premiums for the insurance bond. Lay deputies are not entitled to charge for their time but can recover reasonable out-of-pocket expenses.
If a legal adviser is involved, the Court may order that the professional deputy is entitled to recover fixed costs, which are as follows:
£1,150 plus VAT for the first year of management
£1,185 plus VAT for each subsequent year of acting
What happens if I have no family?
The Court of Protection can appoint a professional Deputy to act if no other appropriate person can. While this might not seem too concerning, would you want a stranger making financial (and possible health and lifestyle) decisions for you?
Even if you have no immediate family, it’s likely you have close friends who would be happy to step in and support you if you need help. A professional deputy is a good idea if you have complex assets and properties and you need financial expertise. But in most cases, a close and trusted friend will be able to seek professional guidance and services to help them look after you appropriately. Take a moment to consider who your attorney/s should be. You may never need their help, but having the power to choose is a valuable freedom.
What can I do to avoid the high costs of Deputyship?
The easiest way to avoid ever needing a Deputyship order is to prepare Lasting Powers of Attorney as soon as you can.
Get them in place now so that you and your family avoid the costs and stress of a Court of Protection application. That way, you can choose who will make decisions for you if needed.
The cost of obtaining a Power of Attorney is relatively small compared to the peace of mind and control it provides over your affairs. It serves as a safeguard, protecting your interests and helping to prevent challenges for your loved ones.
What should I do next?
Stay connected for more insights. Your Carisma Wills consultant is here to provide clarity and guide you in making informed decisions. We're here to support you every step of the way.
Please feel free to contact us today.
