Deputyship and the Court of Protection: all you need to know

Andrew Carrigan, Trusts and Estates Solicitor at Ashfords

Andrew Carrigan, Trusts and Estates Solicitor at Ashfords

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Andrew Carrigan, Trusts and Estates Solicitor at Ashfords, looks at Deputyship and the Court of Protection.

A RECENT study found that over 45% of permanent admissions to care homes start with a hospital admission.

This figure then rises to 56% of permanent admissions to nursing homes.

The need for long-term support is often recognised at a point of crisis. At those points questions seem to come thick and fast, and often carry long term financial and personal consequences.

Sadly, the first questions are usually ‘where should you be cared for?’ and ‘who will pay?’ Today we look at what your nearest and dearest will have to do if you have not prepared and you are no longer able to make decisions for yourself.

If you have not put a Lasting Power of Attorney in place, the body that decides who should act for you is the Court of Protection.

This might come as a surprise to your spouse, parents or children, who may find that their status is questioned, and it is not assumed that they know what is best for you.

The Court of Protection can rule on specific issues or, if somebody suitable applies, can issue a general authority appointing one or more people to act as your 'Deputy'.

The two forms of general authority are Property and Financial Affairs - to deal with financial issues - and Health and Welfare - to deal with medical and personal issues.

The first thing your family or friends will need to decide is who will apply to be made Deputy.

The Court prefers the role to be taken by someone likely to understand what you would want, but this is only a starting point.

The Court will always seek the appointment that is in your best interests.

So how does someone apply to be appointed as your Deputy?

There are numerous forms to complete and the costs are:

  • The application must be supported by a doctor's report - £50-£75; 
  • Court fee - £400; 
  • Insurance bond – about £300.

It will usually take a few months for an Order to be issued. Your prospective Deputy can make the application using the Government website www.gov.uk/apply-to-the-court-of-protection but if they use a solicitor the cost is likely to be around £1,000.

Becoming a Deputy carries ongoing responsibilities:

  • They must always act in your best interests; 
  • They must not make a decision that you can still make yourself; 
  • They must maintain a high standard of care in managing your affairs.

These responsibilities could extend to ensuring that you have claimed any relevant benefits and that appropriate assessments of your care needs are performed.

Next month we will begin to consider the types of assistance someone needing long term care might expect from the state, and the assessments that decide entitlement.

For more information on Deputyship, click on www.ashfords.co.uk/deputyship-and-the-court-of-protection/

Paying yourself as a carer

AN emerging issue is the treatment of funds paid to a Deputy by a local authority or the NHS to meet care costs.

Increasingly, the Government provides money so that a person with care needs can plan, arrange and pay for their own care.

It is of course possible for someone's Deputy to also be the main care provider. This is often the case where the Deputy is the partner or parent of the person receiving care.

The question could therefore arise as to whether a Deputy should pay themselves for providing care and, if so, how much?

In these circumstances it would be wise for the Deputy to go back to the Court to seek approval for any planned payments to avoid any danger of a conflict of interest arising.

You can’t give it away

THE question of gifts from a person without capacity is one that frequently troubles Deputies.

The key points to bear in mind are: 

  • Customary occasions: A gift is likely to be appropriate when made at times someone would normally make one, eg. birthdays.
  • Reasonable: Did the person previously make gifts of that sort?
  • Affordability: Is the gift sensible given the person's wealth? A present worth £10,000 from a person with £15,000 is not appropriate.

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