If someone has lost mental capacity and never made a Lasting Power of Attorney (LPA), their family cannot simply step in and manage their money or make decisions for them. Instead, an application usually has to be made to the Court of Protection to be appointed as that person’s deputy. This typically takes several months, involves court and assessment fees, and comes with ongoing annual reporting duties, which is why advance planning with an LPA is almost always the better route if there is still time to make one.
Written by Simon Jenkins, Curtis Legal LLP (Firm SRA No. 450129, Simon Jenkins SRA No. 167489). Call us on 0800 214 216 for a same-day callback.
When is a deputyship application needed?
Deputyship becomes necessary when someone has lost the mental capacity to manage their own affairs and there is no LPA already in place covering the decisions that now need to be made. This typically arises after a stroke, a serious accident, advancing dementia, or another condition that affects decision-making capacity, where the person never got round to making an LPA while they were still able to. Without an LPA, nobody automatically has the legal authority to access the person’s bank accounts, sell their property, or make decisions about their care, however close a relative they are. The Court of Protection deputy process exists to fill that gap under the Mental Capacity Act 2005.
Property and financial affairs deputy vs personal welfare deputy
There are two main types of deputy, and most applications are for the first:
Property and financial affairs deputy
This is by far the more common type. A property and financial affairs deputy is authorised to manage the person’s bank accounts, pay their bills, deal with their pension and benefits, and, where necessary, sell or manage property on their behalf.
Personal welfare deputy
Personal welfare deputies are rare. The Court of Protection generally prefers health and care decisions to be made by the person’s medical team and care providers in the person’s best interests, under the ordinary provisions of the Mental Capacity Act, without a deputy being appointed at all. A personal welfare deputy is usually only appointed where there is an ongoing, serious dispute about a specific decision, such as where someone should live or a significant medical treatment issue, that cannot be resolved any other way.
Who can apply to be a deputy?
A family member, a close friend, or a professional such as a solicitor or accountant can apply to be a deputy. Where family members disagree about who should take on the role, or where the financial affairs are particularly complex, the court will sometimes appoint a professional deputy instead, or alongside a family member, to reduce the risk of future disputes.
The application process
Applying to the Court of Protection involves several distinct steps:
- Capacity assessment: medical evidence is needed confirming that the person genuinely lacks capacity to manage the relevant decisions themselves.
- Court forms: a set of application forms must be completed, including details of the person’s circumstances, the proposed deputy, and (for financial deputies) the person’s assets and income.
- Notifying interested parties: certain family members and other interested people must be told about the application and given the chance to raise concerns or object.
- Security bond: a property and financial affairs deputy is normally required to take out a security bond, a form of insurance that protects the person’s estate if the deputy mismanages the funds.
- Court order: if the application is approved, the court issues an order setting out exactly what the deputy is and is not authorised to do.
Once appointed, a deputy for property and financial affairs must keep accounts and submit an annual report to the Office of the Public Guardian, who supervises deputies to check they are acting properly and in the person’s best interests.
How long does it take, and what does it cost?
Deputyship applications are not quick. Even straightforward, uncontested cases often take several months from submitting the forms to receiving the final court order, and the process can take considerably longer where there are disputes, incomplete medical evidence, or queries raised by the court. In the meantime, bills still need paying and decisions still need making, which can leave families in a difficult holding position.
Costs typically include the court application fee, the fee for the capacity assessment, the cost of the security bond (an annual premium based on the value of the estate being managed), and the OPG’s annual supervision fee once the deputy is appointed. Where a solicitor assists with the application or acts as deputy, there will also be professional fees on top of these disbursements.
Why having an LPA in advance is almost always better
Deputyship exists as a safety net, not a substitute for planning ahead. An LPA, made while someone still has capacity, lets them choose exactly who should act for them and gives those attorneys authority far more quickly and cheaply than a court application ever can, without the ongoing cost of a security bond. The LPA system itself also evolved from an older instrument, and it is useful to understand how an Enduring Power of Attorney compares to a modern Lasting Power of Attorney when looking at why the current system works the way it does. If you are helping an older relative plan ahead, making an LPA now, while they are still able to, will almost always save their family the time, cost and stress of a deputyship application later.
