Deputyship – when a power of attorney is no longer an option
If your partner, a parent, or another close relative is losing their ability to manage their own affairs, then you may be concerned about how much you can help, particularly where financial matters are concerned.
If the person you care for has not made their own plans, such as by making an enduring or lasting power of attorney, no one will be able to access their funds or make financial decisions on their behalf. This can be particularly problematic when it comes to accessing money for day-to-day living.
‘Many people simply do not want to consider a future in which they are no longer independent. Others might not know who to appoint as an attorney or might worry about being a burden on their family’, says Dagmara Kulczykowska, Partner and Head of the Private Client Services team. ‘Whatever the reason, even if there is no power of attorney then you can still help by applying to become their deputy.’
Applying to be a deputy
Before making an application to become someone’s deputy it is imperative that you ensure they have not already made a power of attorney. Unless a sole attorney has died or lost capacity themselves, or an attorney has been removed by the court for reasons of misconduct, the court will not overrule the wishes of the person who has lost capacity.
It may simply be a case of looking through their paperwork to find out if there is an existing power of attorney. Alternatively or if you remain uncertain, you can find out from the Office of the Public Guardian if a power of attorney has already been registered.
If you are satisfied there is no existing power of attorney, you can apply to the court to become the person’s deputy. Providing the court is satisfied that the person no longer has the necessary capacity to be able to manage their own finances and that you are a suitable person to act for them, the court will appoint you.
How long does it take to be appointed as a deputy?
Applying to the Court of Protection to become someone’s deputy is a time-consuming process. From start to finish it typically takes around six months and until a final order is received you will not be able to make decisions on that person’s behalf.
Unless the person has already put direct debits or standing orders in place, this means that their bills cannot be paid until an appointment is made. Once you are appointed as deputy, you will be able to repay yourself for any bills that you pay from your own funds during this time. If you are unable to cover the cost of the bills, it is important that you contact the various creditors to explain the circumstances and make suitable arrangements.
However, the reason the application process is so lengthy is because the court has your loved one’s best interests at the forefront of its decision making. A deputyship application is subject to a much higher level of scrutiny than when someone makes a power of attorney. It is necessary to obtain a report as to the person’s capacity, in a format which is approved by the court.
You must also notify the person about whom the application is made, as well as their family or close friends, about your intention to make the application, following which the court allows them a set period in which to respond with any concerns they may have. Finally, the court will scrutinise your application and your own financial circumstances in order to ensure that you are the most suitable candidate to act as deputy.
Who pays the deputyship fees?
Because of the different parties involved along the way, deputyship applications are notoriously expensive.
Some costs, such as the cost of the medical report and the court application fee, have to be paid upfront. You will need to meet these costs, but you can reimburse yourself from the funds of the person about whom the application is made once you are appointed. Other costs, such as solicitors’ fees, can be paid once you have access to the person’s funds after a deputyship order has been granted.
One of the key advantages to becoming someone’s deputy, rather than being their attorney, is that you will be subject to a certain level of supervision. This is particularly useful if you have never acted as a deputy or attorney previously, as it provides some reassurance that the decisions you make are appropriate.
A deputy must submit an annual report to the Office of the Public Guardian, detailing the exact capital, income and expenditure that has taken place each year. The report does not require you to submit receipts, but you should keep these for your records as it will make completing the report much easier.
The reporting can be onerous, particularly in the first few years, but it serves to protect your loved one from any mistakes that might be made.
Another level of protection that is afforded to the person whose finances you will be managing, is that you will need to take out insurance annually. The insurance policy is an expense of the person about whom the application is made and can be met from their funds. In the event that something does go wrong, such as if you were to use the person’s money in a way the order does not allow for – for example by making an unauthorised gift, a claim can then be made to pay back any lost funds to your loved one via the insurer.
The benefits of using a solicitor
If you are considering applying to become a deputy for someone, our solicitors can help you through the application process and beyond. You may wish to consider applying for a professional deputy to be appointed alongside you or in your place.
Though it may seem counterintuitive, costs are often reduced by appointing a solicitor to help with the application from the outset. Our team is used to making such applications, and we are aware of all the typical hiccups that might occur along the way.
Instructing a solicitor to make the application on your behalf means you can rest assured that the application process will run smoothly and that you will be appointed in the quickest time possible.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.