If a loved one loses the mental capacity to make decisions and has not already put a Power of Attorney in place, it may be necessary to apply for deputyship through the Court of Protection.
Many family members wonder whether they can complete the application themselves or whether they should instruct a solicitor. While there is no legal requirement to use a solicitor, the deputyship application process can be detailed and, in some cases, complex.
At AFG Law, our experienced Private Client team regularly assists families with deputyship applications, helping to ensure the correct information is provided and guiding clients through what can be an unfamiliar process during an already difficult time.
What is Deputyship?
Deputyship is a legal arrangement that allows someone to make decisions on behalf of another person who no longer has the mental capacity to make decisions for themselves.
A deputy is appointed by the Court of Protection through a court order and is authorised to act in the person’s best interests. Deputyship is usually required where someone has lost capacity without first creating a Lasting Power of Attorney.
What Type of Deputyship Can You Apply For?
There are two main types of deputyship.
Property and Financial Affairs Deputy
The most common application is for a Property and Financial Affairs deputy. This allows the appointed deputy to manage matters such as:
- Bank accounts
- Paying household bills
- Managing pensions and investments
- Selling or purchasing property where appropriate
- Collecting income
- Managing day-to-day finances
For many families, this type of deputyship enables essential financial decisions to continue being made after a loved one loses capacity.
Personal Welfare Deputy
Applications for Personal Welfare deputyship are much less common. The Court of Protection will usually only appoint a deputy for personal welfare decisions where there is an ongoing need for decisions that cannot be dealt with through existing health and social care legislation.
These decisions might relate to:
- Medical treatment
- Care arrangements
- Where someone should live
The court considers these applications carefully and does not automatically appoint deputies simply because someone lacks capacity.
Can You Apply Without a Solicitor?
There is nothing preventing individuals from making the application for deputyship themselves, and many family members choose to do so.
However, deputyship applications involve a number of legal forms and supporting documents. Errors or omissions can result in delays or requests for further information from the court.
For straightforward cases, some families are comfortable completing the paperwork themselves. Others prefer the reassurance of professional legal support, particularly where the estate is substantial, family relationships are strained or urgent decisions need to be made.
What Does the Application Process Involve?
The application process involves more than simply completing one form. Depending on the circumstances, applicants may need to prepare and submit:
- The deputyship application forms.
- An Assessment of Capacity Form completed by an appropriate medical professional.
- A Supporting Information Form explaining why the application is being made.
- A Deputy’s Declaration, setting out the applicant’s understanding of their duties and responsibilities.
Applicants must also notify certain relatives and other interested parties that an application has been made, allowing them the opportunity to raise any concerns if appropriate. The Court of Protection will then consider the application before deciding whether to make a court order appointing a deputy.
What Does an Appointed Deputy Have to Do?
Once appointed, a deputy has ongoing legal responsibilities. An appointed deputy must always act in the best interests of the person who lacks capacity and comply with the Mental Capacity Act 2005.
Their responsibilities may include:
- Managing finances responsibly.
- Keeping accurate financial records.
- Making decisions in the person’s best interests.
- Avoiding conflicts of interest.
- Complying with directions given by the court.
Deputies are supervised by the Office of the Public Guardian (OPG), which helps ensure deputies carry out their role appropriately.
Depending on the circumstances, deputies may also need to submit reports explaining the decisions they have made and how the person’s finances have been managed.
Why Might You Instruct a Solicitor?
Although it is possible to make the application yourself, many people choose to instruct a solicitor because deputyship applications often arise during stressful periods. You may already be supporting a parent with dementia, helping a partner following a serious accident, or dealing with complex financial arrangements.
A solicitor can help by:
- Explaining the most appropriate type of deputyship.
- Preparing the application accurately.
- Ensuring all required forms are completed correctly.
- Advising on supporting evidence.
- Corresponding with the Court of Protection.
- Answering questions throughout the process.
- Advising on your ongoing responsibilities once appointed.
Professional advice can also help reduce delays where additional information is requested by the court.
Deputyship or Lasting Power of Attorney?
Many clients ask why deputyship is necessary at all. The answer is usually that no Lasting Power of Attorney was put in place before capacity was lost.
Had a Power of Attorney already existed, the appointed attorney could generally begin managing financial affairs without needing to apply to the court.
This is one reason why AFG Law encourages clients to consider putting a Lasting Power of Attorney in place while they still have capacity. It is usually quicker, simpler and less expensive than applying for deputyship later.
How AFG Law Can Help
Applying for deputyship can feel overwhelming, particularly when you are already supporting someone who has lost capacity. At AFG Law, our experienced Private Client team can guide you through every stage of the process, whether you simply need advice or would like us to manage the application on your behalf.
We can assist with:
- Advising on the appropriate type of deputyship
- Preparing the deputyship application
- Completing the Assessment of Capacity Form and Supporting Information Form requirements
- Preparing the Deputy’s Declaration
- Corresponding with the Court of Protection
- Advising newly appointed deputies on their ongoing responsibilities
- Supporting families with wider estate planning, including Lasting Powers of Attorney
While you do not legally need a solicitor to apply for deputyship, obtaining professional advice can provide reassurance that the application has been prepared correctly and that your loved one’s affairs will be managed in accordance with the law.