If a loved one loses capacity and they don’t have a Lasting Power of Attorney or Enduring Power of Attorney in place to manage their affairs, a deputy may need to be appointed. I explain the process…
What is Deputyship?
A Deputyship creates a similar situation and relationship to those of the Donor and the Attorney(s) created by a Lasting Power of Attorney. The fundamental difference is that because the donor no longer has the capacity to choose who to appoint to help them – as is required to create Lasting Powers of Attorneys and their predecessors Enduring Powers of Attorney – the court has to be satisfied that to appoint a deputy is in the individual’s best interests.
It also imposes additional duties on the Deputy in terms of filing accounts and supervision from the Court. There are also ongoing management costs, which are not required under Lasting Powers of Attorney.
For someone who lacks capacity and is without an Attorney or Deputy, the general rule is that no financial transaction can be validly undertaken on their behalf.
When is Deputyship needed?
As is the case with Lasting Powers of Attorney, there are also two types of Deputies. There are those that deal with matters concerning property and finance, and those that concern health and welfare matters.
With regard to the former, anyone who has financial assets, be it a property, money in the bank or shares, will need someone to act on their behalf. So if decisions need to be made or money accessed, someone will need to apply to be a Deputy on their behalf.
When it comes to health and welfare matters, it’s often much more difficult for a Deputy to be appointed, because by necessity, there are safeguards within the law itself, such as in the Mental Capacity Act 2005, as health issues are paramount to all individuals. That said, there are certain scenarios where the court requires cases to be brought before them to be decided by the court.
These include, but are not limited to scenarios where serious medical treatment is required, even if there’s no dispute between any of the parties involved, and cases concerning potentially risky medical and welfare questions.
If you’d like more information about Deputyship or would like to arrange an appointment to see one of our Solicitors, please contact us on 01604 828282.