Deputyships. What are they and why might I need one?
The majority of the population are well aware of the need to have a valid up to date Will to cover the inevitable event of their death. What is less commonly known is the need to ideally have in place a formal document for what would happen if they were unable to look after themselves but haven’t died.
It seems it’s easier to plan for death rather than the (fortunately, far less likely event) of being unable to deal with financial matters yourself.
Ideally we should have in place a Lasting Power of Attorney (LPA). You can read my colleague’s article here about these. In essence an LPA is drafted when you are able to make fully capacitous decisions about who you would like to make financial, or health/welfare, decisions on your behalf in the event you are unable to do this yourself. It is a very powerful document and one that needs a lot of careful consideration. I advise clients to treat the LPA like an insurance document that may hopefully never be needed but is important to have in place. Just in case.
So what happens if you can’t manage your own finances and you don’t have an LPA? If you lack mental capacity to execute an LPA and you lack mental capacity to make decisions about your assets and finances, this is where Deputyships come into play. These examples are only relating to financial deputyships but please be aware that it is possible to be appointed as someone’s Health & Welfare Deputy. This will be covered in a future article.
You may need a Deputy appointing to manage your property and finances if:
- You have advanced dementia and are unable to cope with your bills, bank accounts etc
- You have mental health issues which affect your ability to understand and manage your own finances and assets
- You suffered a brain injury in an accident which affects your ability to understand and/or manage your own finances
- You suffered injury at birth/childhood and were awarded compensation
To set the scene with an example: You are a 45 year old husband, father of 2 with a full time job, a mortgage and bills to pay. You are in a horrendous car accident which isn’t your fault. You survive but only just. The injuries you sustained are life changing. You require physical assistance to bathe and dress and suffered a brain injury which changes your personality and makes you unable to appreciate the value of money, pay bills or understand what your mortgage is.
You are going to need someone to apply to the Court of Protection to be appointed as your Deputy to manage your finances on your behalf. Without a formal deputyship order, no one, not even your spouse, will have authority to access your bank accounts or manage any of your assets. It is likely that you will have a successful personal injury claim but again, depending on the figure awarded, as a long term fix you will need someone authorised by the Court to manage these funds for you. Your Deputy will step into your shoes to manage your assets and finances in your best interests.
You can read our other articles in the series for information about the process of applying for a Deputyship, who can be a Deputy and what they can expect.
If you are at all unsure about whether a Deputyship might be needed for a friend, family member or loved one, please call a member of our Oxford Court of Protection team.
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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