What is the Difference Between the Court of Protection and a Deputyship?

INTRODUCTION

In estate planning, it's essential to understand the legal mechanisms that come into play when an individual loses the mental capacity to manage their affairs.

In a related article, we discussed the main distinctions between the Court of Protection and a Lasting Power of Attorney (LPA), two essential legal documents for people who might lose their mental capacity. In that article, we outline the proactive measures one can take with an LPA to designate a trusted person to act on behalf of the individual about to lose mental capacity for future decision-making.

In this article, we focus on the Court of Protection and the Deputyship process, detailing what happens when an individual has not made such preparations and clarifying the necessary steps to obtain legal authority to act on behalf of a loved one during such critical times.

THE COURT OF PROTECTION: MYTHS AND REALITY

It's a widely held belief that the spouse/partner or close relative of somebody who loses mental capacity can simply intervene and take over.

This is simply not the case, and in reality, legal power is needed, which is where Deputyship and the Court of Protection come in.

When someone loses the mental ability to handle their affairs, the role of the Court of Protection is significant. It must grant the legal authority to somebody to take over decision-making responsibilities.

TYPES OF DEPUTYSHIPS

In the eyes of the Court of Protection, there are usually two types of deputyships that influence when they can protect a person who loses the ability to manage their day-to-day affairs.

• Property and Financial Affairs Deputyship: This allows the Deputy to handle financial transactions or make financial decisions on behalf of the incapacitated person.

• Personal Welfare Deputyship: This involves making decisions about personal welfare, medication or other forms of healthcare.

APPLYING FOR DEPUTYSHIP

If you believe that a loved one no longer has the mental capacity and needs help managing their affairs, you can apply to the Court of Protection to become a deputy. During the application process, you'll need to submit a few forms and provide comprehensive details of the following:

• Details of the individual's financial assets and overall health condition.

• A medical assessment that confirms the individual's lack of capacity details their current health condition.

• Detailed statements about your ability to take on the role of Deputy (relationship with that individual, your own financial and health circumstances, etc.).

RESPONSIBILITIES OF A DEPUTY

Once you are appointed Deputy, you must:

• Act in the individual's best interests at all times.

• Keep accurate and up-to-date records of all your decisions and actions relating to the individual.

• Ensure that your own finances are kept entirely separate from the individual's.

• Demonstrate at all times payments made on that individual's behalf.

• Report regularly to the Court of Protection under supervision.

WHAT IS THE DIFFERENCE BETWEEN DEPUTYSHIP AND LPA?

Although acting on behalf of somebody who cannot make their own decisions is a common feature of a Deputyship and an LPA, they differ in origin.

In the absence of an LPA, a Deputy is appointed by the Court of Protection. If there is an LPA, it's regarded as a proactive measure where an individual appoints their own representative.

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