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Deputyship application solicitors.

Quite often, people will contact our team of Wills and Probate Solicitors and ask whether they can make a Lasting Power of Attorney on behalf of their loved one, as they no longer have capacity. Unfortunately, if a person has already lost capacity, this is not possible. A Lasting Power of Attorney needs to be made by the Donor themselves, and not on their behalf.

If a person no longer has capacity, their family or loved ones may be able to make an application to the Court of Protection to be appointed as their Deputy for Financial Decisions, Health and Welfare decisions, or for both.

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Who can apply to be appointed as Deputy?

Almost anyone who is over the age of 18 and who has mental capacity themselves can apply to be appointed as a person’s Deputy. Generally, it will be family or friends of the person who has lost capacity; however, this is not always the case. Sometimes, a professional may apply, such as the Local Authority or a Deputyship Solicitor.

What law governs Deputyship Applications?

Under the Mental Capacity Act 2005, Deputies must comply with the five statutory principles when they are acting on behalf of another person:

Every adult has the right to make their own decisions, and must be deemed to have capacity unless it is proven otherwise.

Every person must be given all the possible help they can before they can be considered as unable to make decisions themselves.

Every person has the right to make decisions, even if others would consider these unwise or eccentric.

Deputies must make all decisions and carry out all acts for or on behalf of a person who lacks capacity with their ‘best interests’ in mind.

Deputies must carry out all acts and make all decisions that are the least restrictive of the person’s basic rights and freedoms.

Essentially, Deputies are acting as though they are the person who has lost capacity, and therefore they are under a duty to apply the highest possible standard of care when they make decisions.

Generally, most people would say that once they have been appointed as a Deputy, this isn’t too difficult, as they believe that they know what the person would have wanted.

What responsibilities does a Deputy have?

As a Deputy for someone who does not have capacity, you are responsible for helping someone to make decisions or for making decisions entirely on their behalf.

If your application is successful, you will receive a Court Order, which fully outlines what you can and cannot do on behalf of the person who doesn’t have capacity. However, there are also some general rules and guidance available in the Mental Capacity Act 2005 Code of Practice, which all Deputies will be expected to follow.

Some general guidance offered by gov.uk, includes ensuring that any decisions reached are in the person’s best interests, taking into account what the person has done in the past and would be likely to want you to do, and do everything in your power to help the person understand the decision that you’ve made (for example, you could use pictures or sign language, if they struggle to understand full sentences anymore).

What can Deputies not do?

Deputies cannot do certain things on behalf of the person who has lost capacity, without express permission of the Court by way of a Court Order:

Make a Will on their behalf (an application would need to be made for a statutory Will if a person lacks capacity to make a Will themselves);

Create a trust for the person;

Decide to physically restrain the person (unless to prevent them from being harmed or coming to harm);

Make a decision contradicting a decision made by an Attorney appointed under a Lasting Power of Attorney;

Refuse consent to any medical treatment which would help keep the person alive;

Make decisions about who the person can or cannot communicate with;

If a Deputy is ever unsure about whether they can make a decision or carry out an act on behalf of the person who has lost capacity, the Court of Protection will be able to offer more guidance.

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How much will an application to be appointed as a Deputy cost?

If you require the assistance of our Wills and Probate Solicitors, our fees are usually fixed at £950.00 plus VAT*. This is the Court's set costs.

There will be an application fee, payable to the Court of Protection, of £371*. This will be payable for every type of application that you want to make (i.e. financial deputy or health and welfare deputy).

You may also need to pay a medical report fee to ascertain that the person who the application is about does not have the required mental capacity to make the decisions themselves. This can differ depending which area you live in, and your GP, however in our Wills and Probate Solicitor’s experience, it is usually in the region of £75.00 to £200.00*. Generally, there is no VAT payable on these fees.

In addition, if the Court decides that your application requires a hearing to be held, there will be an additional fee of £485.00* payable to the Court of Protection.

*All fees quoted are correct as of 25 February 2022.

Can I make gifts as a Deputy?

Once the application has been completed, the Court will include a statement as to whether or not you can buy gifts or give people gifts of money on behalf of the person who lacks capacity. This would also include gifts of donations to charity. The Court Order may also specify any annual limit on the number of gifts (or the total amount spent on gifts) that you can make.

If you are allowed to make gifts under the Court Order, these should always be reasonable, and they must not reduce the level of care that the person lacking capacity will receive or that they can afford.

If you wanted to make a larger gift, for example for Inheritance Tax purposes, you would need to make a further application to the Court of Protection, who would consider how this gift would affect the person lacking capacity, and the effect that it could have on Inheritance Tax.

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Can I claim back expenses as a Deputy?

If you are appointed as a Deputy, you must keep detailed accounts of the person’s money. If you need to make payment of any expenses back to yourself, such as 'phone calls, postage, or travel costs, you can do this. However, you may be asked to report back to the Office of the Public Guardian with a detailed report of what you have claimed, and you may be required to pay some of the funds back if the Office of the Public Guardian thinks your expenditure is unreasonable.

You cannot claim money back for costs of travelling for social visits or for time spent carrying out your duties if you are a lay person (i.e. not a professional, such as our team of Wills, Trusts and Probate Solicitors). To learn more about claiming back expenses as a deputy, and speak to a wills and probate solicitor about our services, contact us online here and speak to a solicitor within one working hour.

What fees will be involved after I am appointed as Deputy?

There will be a few fees payable after you have been appointed as Deputy:

Supervision fees - There will be an annual supervision fee payable to the Office of the Public Guardian. If you require general supervision, the fee will be £320.00 annually. If you only require minimal supervision, you may only have to pay £35.00. The Office of the Public Guardian will confirm what fees are payable directly to you, and how to make payment of these. See more on this here.

Bond Fees - if you are appointed as a Deputy for Property and Financial affairs, you may have to pay a security bond for your application to be completed. The Court will write to you to advise you of the amount of the bond required. They will also recommend a bond provider, such as Howdens.

The amount of the bond payable will depend on how much the Court requests. It is usually proportionate to the size of a person’s assets.

You can make payment of this bond yourself, and claim the money back from the person once your application has been successful, or you can use the person’s money to pay it.

Can I get help with the Court of Protection application fee?

Whether or not you can get help towards paying the £365.00 application fee will depend which type of application you are trying to make.

If you’re applying to be appointed as a Deputy for property and financial affairs, the Court will assess the person’s finances to see whether they could get help with the fee. If you are applying to be appointed as a Deputy for personal welfare, your financial circumstances will be assessed to see whether you can get help with the fees.

For more guidance about whether or not you can get help with the Court of Protection fees, contact MG Legal's team of wills and probate solicitors, and get it right first time.

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