What does the application process to become a Deputy involve?
An application to be appointed as a Property and Financial Affairs and/or Health and Welfare Deputy, for a person lacking mental capacity (hereafter referred to as “P”) can seem quite a daunting process.
The process involves the completion of a number of Court of Protection forms, to include information about P, such as their date of birth, marital status and address. If making an application for Property and Financial Affairs, information will also need to be provided regarding any property and other assets owned by P, as well as P’s regular income and expenditure. If making an application for Health and Welfare, information relating to P’s doctor, social worker and NHS body responsible for P’s treatment will need to be provided.
Regardless of whether a Property of Financial Affairs application or Health and Welfare application is being made, the Court of Protection requires a mental capacity assessment to be completed and for the expert who carried out the assessment to complete the relevant Court form relating to capacity. This is a measure to protect P and to ensure that P does in fact lack capacity to make decisions in a particular area. Capacity can fluctuate and a person can have capacity to make some decisions, but not others, which is why these capacity assessments are important.
As part of the application, the Court will require you to list three people to be notified or served with the application. The reason for this is to allow for objections or comments to be made by people who are involved or would have an interest in decisions made on behalf of P. The Court has this in place as a safety mechanism, to try and prevent unsuitable people from being appointed as deputies.
The Court will also require a form to be completed by the proposed deputy/deputies, which asks several questions to ensure that they are suitable to act as deputy, such as whether they have ever been convicted of a criminal offence, whether they have been refused credit and whether they have ever been declared bankrupt, to name a few. The form also requires the proposed deputy/deputies to give several undertakings in relation to P.
Once the relevant forms are completed, these are submitted to the Court of Protection, along with the Court application fee, currently £365.
The Court will then ‘issue’ the application. This is effectively where the Court stamps the application to confirm receipt, provides the application with a case number and a record is noted on their system that an application has been made/received. There is then an obligation to notify/serve the relevant parties listed on the Court form, as well as P, of the application.
Two further forms then need to be completed to confirm that service/notification has taken place and these need to be submitted to the Court. Once the Court receives the forms confirming service/notification has taken place, they match the forms with the original application and it is put before a Judge to decide whether to make the Order.
On property and affairs applications a security bond needs to be put in place before the official Order is issued to the deputy/deputies. The security bond is essentially an insurance policy to protect P, should their deputy/deputies mismanage misappropriate funds. The value of the bond is determined by the Court.
Once the deputy has the Order, they then have the legal authority to be able to act on P’s behalf, as per the authority given in the Order. The Order should be carefully checked upon receipt to ensure it is accurate and also so the deputy/deputies are aware of the limits of their authority.
Being a Deputy involves submitting annual reports to the Office of Public Guardian regarding decisions made over a management year and there are also annual supervision fees which will be paid to the Office of Public Guardian.
You should be aware, when considering making a Deputyship application that these are not quick applications and orders can take anything from 4 months to over a year to be made, dependent on circumstances. Urgent applications can be marked as such and dealt with more quickly than this where appropriate.
If you need assistance in making a Deputyship application, or would like some further information, then please contact a member of the Freeths Court of Protection team on 01865 781000. We will be happy to assist.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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