Having ‘mental capacity’ means you are able to make any major decisions about your own financial affairs and welfare.
As a rule, people lacking mental capacity will be unable to make important decisions about their own welfare or finances.
There are several common reasons why some people might lack mental capacity, including things like:
- A serious brain injury or a mental illness.
- Dementia (e.g. Alzheimer’s disease).
- Severe learning disabilities or loss of memory.
But, you can apply to the Court of Protection to become someone’s deputy. The COP authorises deputies to make decisions on behalf of others at the time the issues need resolving.
Types of Court-Appointed Deputy
Property and Financial Affairs Deputy
This kind of deputy can manage the property and the financial affairs of an adult deemed mentally incapable of doing so themselves. For example, the role would include paying their bills and organising their pension.
Personal Welfare Deputy
Among other things, personal welfare deputies make decisions about medical treatment. For example, they would get to decide how someone is taken care of.
In most cases, the Court of Protection would only appoint someone as a personal welfare deputy if:
- There is some doubt on whether the decisions made will be in the best interest. So, for example a welfare deputy might help someone make decisions about health care because the family cannot agree.
- Someone needs appointing to make the decisions on a specific issue over a period of time. An example would be deciding where a person lacking capacity will live.
Note: The person must be at least 16 for you to become their personal welfare deputy. The Court of Protection: personal welfare application (COP GN4) has further guidance or you can get legal advice.
Being Appointed as a Deputy
You can apply to be a property and financial affairs deputy or a personal welfare deputy (or both). You will receive a court order if you get appointed. The order explains your responsibilities as someone’s deputy (see below).
You must complete an annual report and send it to the Office of the Public Guardian (OPG). The purpose of the yearly report is to explain what decisions you made.
How to Apply to Become a Deputy
You can check whether you meet the requirements to become a deputy. The next step is to send the application forms to the Court of Protection and pay the application fee (see below).
Note: You do not always need to be a deputy to make decisions for another person. You can apply to become an appointee for someone claiming benefits, for example.
Deputy Application Checks
The Court of Protection will make several checks on your application to become a deputy, such as:
- Whether there are any objections to your appointment of becoming someone else’s deputy.
- Whether the person needs an actual deputy or someone to carry out certain decisions on their behalf.
Being appointed as a deputy would get you extra help, support, and visits from the Office of the Public Guardian. The OPG will help you to fulfill your responsibilities until the court order changes, gets cancelled, or expires.
Alternative Ways of Making Decisions
It is not always necessary to be a deputy to help out in the running of someone else’s affairs. You can apply to the Court of Protection for a one off order to make a single important decision.
Note: The person may already have a lasting power of attorney or an enduring power of attorney acting on their behalf. So, you may need to find out if someone has an attorney (LPA or EPA) before you apply.
Help and Guidance Notes for Deputies
The court has some restrictions on who it appoints as deputies. Check the key responsibilities of a deputy and the penalties for mistreatment or neglect.
There are strict rules for court-appointed deputies on accounts, gifts, and expenses. Check the regulations for a deputy to buy gifts or make charitable donations.
You will need to complete an annual report as a court-appointed deputy. Further information lists what you need to include and how professional deputies submit their reports.
Deputy Application Process
Check which forms to use and where to send them when you apply to be a deputy for someone. Find out who you need to tell and how to ‘serve notice’ (confirm you told the right people).
Fees to Become a Deputy
There is a supervision fee and security bond to pay if you apply to become a deputy. Check to see if you qualify for help with the application and supervision fees.
Note: Have you been overcharged deputyship fees by the OPG for England and Wales? If so, you may be able to claim a deputyship fee refund.
After Being Appointed as Deputy
You may need to tell the person about the court hearing once you have applied. Check what happens after being appointed as a deputy and how to tell other people and organisations.
There are several means of supervision and support for deputies, often through home visits. Find out how you get supervised and how to contact Office of the Public Guardian.
Changing Your Deputyship
You must follow the set process to change your deputyship or make a one-off decision. Find out how to apply to the court and what happens afterward.
As a general rule, there needs to be a valid reason for someone to end a deputyship. Check which forms you need to use and what to do if the person you are acting as deputy for dies.