Do we need an appointeeship, or a deputyship?

An adult who:

• Has a learning disability or is on the autistic spectrum, who lacks the mental ability to understand the value of money or weigh up financial or health/welfare decisions,

• Has lost their mental capacity to manage their finances or make decisions about where they live, who looks after them and health decisions, due to an accident or injury causing brain damage or due to a stroke,

• Has dementia or Parkinson’s or MS or another progressive condition which has caused so much deterioration in their brain functioning that they have lost their capacity to make decisions for themselves.

Where an adult individual lacks the mental capacity to manage their financial affairs someone needs to act on their behalf in these matters. If the individual had not appointed an EPA or LPA and they have savings or assets worth over £6,000 and/or they have income from other sources in addition to benefits or pension from the DWP, then they will need someone to act as a deputy on their behalf.

A deputy can be authorized to manage all of a person’s financial matters including savings, private income, e.g. occupational pension, income from investment, and also property.

If a deputyship is appropriate for the individual then this could be a family member, friend, local solicitor, or a care provider, for example the owner of a residential home or domiciliary care provider.

The following is an extract from the government’s Justice website:

If you care for someone who lacks capacity, you can make certain small decisions for them without asking the Court of Protection. These include some decisions around personal care, healthcare, or other treatment – provided that it is carried out in the best interest of the person.

Doctors and local authorities can make decisions about treatment and accommodation and do not normally need to apply to the court to do so. For example, this could include decisions that need to be made quickly for someone’s healthcare.

What this implies, but does not state clearly, is that doctors and local authorities (usually Adult Social Care Services) can and do make major decisions on behalf of adults who lack mental capacity, without legally having to consult or even inform the parents or close family members.

Any person over the age of 18 can be a deputy. Anyone applying to become a deputy must declare any criminal convictions or bankruptcy arrangements to the court and these could lead to the application being refused.

A spouse, partner or family member usually acts as a deputy, but it could be a close friend or other person. If no one suitable is willing and available, the Court of Protection (COP) can appoint a professional to act as the person’s deputy.

Local authorities, such as Diverse Abilities, can also become the COP approved deputy. Law firms also act as deputies although the fees charged by solicitors tend to be much higher than other professional organisations that can assume the role.

The COP will grant deputyship orders to specific named professional members of staff or organisations, such as charities providing supported living services, or to family accountants or solicitors. Where there is no family solicitor, accountant, or agency willing and able to apply to become a deputy, the Court can appoint one of a panel of professional deputies who is registered with it.

If there is no one willing or able to undertake this role then, as a last resort, the local authority will act as a property and affairs deputy for that individual in low value estates. Where the person lacking capacity has a large estate, then a professional deputy will almost always be appropriate.

In most cases, professional deputies charge for their services up to maximum rates set by the COP. In general, solicitors typically charge much more than some other not-for-profit organisations, although there are always exceptions to the rule.

Local authorities charge the individual, on whose behalf they are appointed to act as deputy, for their services in carrying out the deputyship. There is a scale of charges for local authorities set by the COP too.