What to do if someone lost capacity with no power of attorney in place? (Deputyship)

Many people don’t like to think of a time where they may not have the mental capacity to make their own decisions, people seem to have the attitude that it will never happen to them. This could not be further from the truth. More and more people are being diagnosed with medical conditions that effect their ability to make their own decisions. Although some medical conditions may be a gradual deterioration in capacity, there are also circumstances where capacity can deteriorate rapidly.

The best thing to do would be to make a Lasting Power of Attorney whilst you still have capacity, but this is not always the way things happen.

The process to obtaining a deputyship is more expensive and takes much longer than a Lasting Power of Attorney, so if you take anything from this article it is that you should seriously think about making a Lasting Power of Attorney, but I will explain the process for if you lose your capacity without an LPA being in place.

Just like Lasting Power of Attorney there are two different types of deputyships.

1. Personal Welfare Deputy

2. Property and Financial Affairs Deputy

Who can be a Deputy

The person wishing to be a deputy would need to be over the age of 18 years. Be of demonstrably good character. This means that you might not be able to be a deputy if you have a criminal record, have been declared bankrupt. Also, you will need to know the person well if you are going to act as someone’s deputy.

Responsibilities of a Deputy

A Deputy will be responsible for helping you make decisions or making decision on your behalf. Your deputy should consider your level of mental capacity every time they make a decision for you. They cannot just assume it is the same at all times and for all kinds of things.

When a deputy is making a decision, they must:

• make sure it’s in the other person’s best interests
• consider what they’ve done in the past
• apply a high standard of care – this might mean involving other people, for example getting advice from relatives and professionals like doctors
• do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language

They must not:

• restrain the person, unless it’s to stop them coming to harm
• stop life-sustaining medical treatment
• take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf
• make a will for the person, or change their existing will
• make gifts unless the court order says you can
• hold any money or property in your own name on the person’s behalf

Who to apply

When you are deemed to have lost capacity, your loved one who wishes to be appointed as your legal deputy will need to obtain a COP3 capacity assessment by a doctor or specialist. The COP3 is the name of the form that will need to be submitted to the Office of the Public Guardian.

When the COP3 is complete and it has been established that you lack capacity, a COP1 application form will need to be completed by your proposed deputy, this will detail what they are apply for, be it one or both of the deputyships available.

Your proposed deputy will also need to complete a COP4 deputy’s declaration to declare that they wish to be appointed as your deputy.

Finally, a COP1B form may be needed to submit any supporting information to the application.

What happens after the application is submitted (deputy)

The court will aim to send a stamped copy of the application within a week of receiving it. This means the application is being considered (it has been ‘issued’).

Within 14 days of the application being issued, the proposed deputy must tell (sometimes called ‘serving’) the following people:

• the person they are applying to be a deputy for
• at least 3 people named in the application as having an interest, for example the person’s relatives, social worker or doctor

The proposed deputy must visit you and tell you:

• who’s applying to be your deputy
• that your ability to make decisions is being questioned
• what having a deputy would mean for you
• where to get advice if you want to discuss the application

During the visit your proposed deputy would provide you with:

• a completed notice about proceedings (COP14) 
• an acknowledgment form (COP5) 
• any other documents related to your application

They must also:

Tell 3 people named on the application that it has been issued.

Send them:

• a notice that an application form has been issued (COP15)
• an acknowledgment form (COP5) 
• any other documents related to your application

They can be notified:

• by post to their home address
• by email
• in person

Within 7 days of serving the documents, they must download and fill in the relevant forms (sometimes called ‘certificates’) confirming they have told:

• the person they are applying to be deputy for – fill in a certificate of notification (COP20A)
• the other people named in the application – fill in a certificate of service (COP20B)

What happens next

The Court of Protection will then review the application and tell your proposed deputy if:

• your application has been approved or rejected
• you’ll need to pay a fee to set up a security bond before you can be appointed
• you have to provide more information to support your application, for example a report from social services
• it’s going to hold a hearing to get more information, for example if someone objected

What happens if a hearing is needed

A notice date will be provided to your proposed deputy. Your deputy must then visit you and tell you about the hearing. This must be done within 14 days of getting the notice and at least 14 days before the date of the hearing. Your proposed deputy will need to complete a COP14 form which gives notice about the proceedings. When the proposed deputy has complied with the notification a COP20A will need to be submitted to the Office of the Public Guardian.

Fees

The court application fee is currently £408 per type of deputyship therefore it would be £816 in total for both types of deputyships. This is a considerable difference to £82 or £164 if you wanted one or both Lasting Powers of Attorney.

This fee would be payable when making the application and does not include any costs which would be incurred if you were to require assistance form a legal professional.

Once the fee and applications and all the above has been complied with the Office of the Public Guardian will consider the application and make a decision on if the proposed deputy should be appointed. This can take some time.

As you can see this process is very long, confusing and expensive. Despite this, it is achievable if needed. Buy they best way to avoid having to go through this process would be get a Lasting Power of Attorney in place now while you can.

Our team at Baines Bagguley Penhale have the relevant expertise and experience, to provide you with appropriate advice.

For further information please visit our website at www.bbpsolicitors.co.uk. Or contact us for further information on 01524 401010.