If you haven’t managed to set up a Lasting Power of Attorney before someone loses capacity, you will need to become a Deputy. Here’s what’s involved…
If, for whatever reason, you do not manage to set up a Lasting Power of Attorney or do not already have an Enduring Power of Attorney in place, and you need to start managing someone’s finances, property or personal welfare because they have lost mental capacity, you will need to apply to become a Deputy.
What is a deputyship?
Deputyship is very similar to Lasting Power of Attorney except in the way it is set up and, more importantly, the costs and time it takes to set up. Deputyship is a lot more expensive than Lasting Power of Attorney.
It is set up through the Court of Protection, and it is them that have the final say on who will be the Deputy for the person who has lost their capacity. In most cases, they will choose a family member or close friend, but this is no guarantee. A Deputy needs to be 18 years or over.
Much like a LPA, there are two types of deputyship; property and financial affairs and personal welfare. You can apply to be one type of deputy or both, but in both cases, it is the Court of Protection that will decide how the deputy can act and the powers they will have.
The application consists of four different forms, one of which is a form signed by a medical practitioner (such as a GP or psychiatrist) who can provide evidence and confirmation that the person lacks mental capacity. This is known as form COP3. There are also other forms that will need to be filled in providing details about the person applying to be Deputy and the person who lacks capacity. These forms are then all sent off to the Court of Protection.
You should keep a copy of every form you fill in.
The Court will assess whether the person applying to be a Deputy is suitable, and then provide a court order defining what their powers will be. This is the document that you will need to show in order to start making decisions for someone. You do not usually need to appear in court, as it can all be done through the post.
If there is no relative who can act as a deputy, the Court of Protection may appoint a professional, such as a solicitor or accountant, who will no doubt ask for a fee to act on behalf of the person.
Duties of a deputy
Much like becoming an attorney, it’s vital that you consider the various responsibilities involved with being a deputy. These include:
– Ensuring you act with due care, skill and in good faith
– Not taking advantage of the person with dementia or the situation they are in
– Not delegating your duties to another person (unless authorised)
– Respecting the person’s confidentiality
– Complying with the directions from the Court of Protection
– Keeping accounts (if you’re a Property and Finance deputy) and keeping their money and property separate from your own.
– Writing an annual report which gives the Court information about the decisions you’ve made on behalf of the person with dementia, including details of the financial transactions of the previous year, such as bank statements, and information about the person’s affairs.
How much does it cost to set up a Deputyship?
The cost of setting up as a Deputy for someone is probably the biggest reason for getting organised with a Lasting Power of Attorney. The fee for each type of LPA is £82. The application fee to become a Deputy is £400 and you will need to pay this twice if you are to become a Property and Finance Deputy and a Health and Welfare Deputy.
That’s not the only cost. You will need to pay an annual supervision fee, which is either £35 (if you are a financial deputy and managing funds of £21,000 or less) or £320 (if you are responsible for managing funds higher than £21,000). There is also a £100 assessment charge.
If the case needs to go to a hearing (rare, but it can happen), there will be a £500 fee. Plus, there may also be solicitor fees if you choose to use one when applying to be a deputy, and these can be as much as £1000.
If you are on a low income, or in receipt of benefits, you may eligible for reduced or waived fees.
One of the first things you’ll need to do once you have become a Property and Finance Deputy is to pay a security bond.
The bond is basically an insurance policy to protect the finances of the person you’ve become a Deputy for, in case you mismanage them. The bond is determined by how much money you will have control of, and this will include non-cash assets such as property.
As with other fees, you can either pay the bond from your own money and be reimbursed, or from money you hold for the person (although the latter is less likely as that’s the very reason you’re setting up the Deputyship).
There will be an annual premium for the bond (much like other insurance policies) which is basically a payment you make each year and which will continue for as long as the deputyship is in place.
How long will it take to set up Deputyship?
This can depend on a number of factors, including whether permission is required, the time taken to notify all interested parties that you have made an application, whether the court requires more information before making a decision and whether anyone opposes the application.
It usually takes two or three months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.
If you need to become a Deputy as a matter of urgency, you can make an urgent application (sometimes called an ‘interim application’) if you’re applying or have applied to become the other person’s deputy, but your deputyship hasn’t been approved yet and you need to make a specific decision on the other person’s behalf immediately.
The urgent application must be for a specific decision that needs to be made without delay, for example, to get money from the person’s bank account to pay outstanding nursing home fees.
What happens in Scotland and Northern Ireland?
It’s important to remember that the above information only applies for Deputyship in England and Wales. If you live in Scotland or Northern Ireland and you’re applying for control of someone’s finances when they don’t have power of attorney in place, you’ll need to set up Guardianship or Controllership powers.
This is set up in a very similar way as Deputyship. You will need to apply to the Office of the Public Guardian for Scotland, and you can be either a financial guardian, welfare guardian or a combination of financial/property and welfare.
Duties will be similar to a Deputyship, namely, to act in the best interests of someone lacking capacity and carry out their duties properly within the scope of their powers. There are also fees, and they can vary depending on the volume of money you will be managing.
Controllership (Northern Ireland)
This is set up through the Office of Care and Protection. You can get a relative to become a controller for someone who lacks capacity, or a professional such as a solicitor.
As a controller, you will have the authority to manage financial affairs, according to the duties set out by the court. This includes managing income to ensure needs are met and bills are paid.
Fees for a Controllership order are £200 for the commencement fee and £115 for the controllership order. There is also an annual fee that is between £250 and £350.
Click the links for more information on how Power of Attorney differs in Scotland and Northern Ireland.
Need help filling out Lasting Power of Attorney documents? Unforgettable can help! We’ve created an online questionnaire to help you fill out your LPA and cover off any issues related specifically to dementia and the challenges it can present. Click here for more information.