If someone was to become mentally incapable to make decisions about their own financial affairs then, unless they had previously made a Lasting Power of Attorney, an application will need to be made to the Court of Protection for a ‘Deputy’ to be appointed to act on their behalf.
The Court of Protection is responsible for protecting the interests of people who lack mental capacity, and a ‘Deputy’ is the person appointed by the Court who has the legal authority to act on their behalf. There are many reasons someone might lack mental capacity (eg, dementia, learning disabilities, illness or other medical condition) and typically the Deputy will be a close relative (eg, parent, spouse or child) or friend of that person, but can be a professional person (eg, a solicitor or accountant), or the local authority.
To be appointed as a Deputy you must provide the Court with a medical assessment of the person’s mental capacity, as well as details of their income and finances. You will also need to assure the Court that you have the relevant skills and qualities to act as a Deputy. If you have your own financial problems, or if you have previously been declared bankrupt, then the Court might view you as being unsuitable to act. Unless that is the case, and assuming the Court are otherwise happy, then the ‘Deputyship Order’ will usually be made within 3-6 months of the application being filed.
Once appointed, your duties will include making decisions and acting in the person’s best interests, acting in good faith and acting with due care and skill. As a Deputy you will not be permitted (unless authorised by the Court) to delegate your duties or to take advantage of your position. The Court will usually ask you to submit an annual report giving a summary of the person’s financial position as well as information about the decisions you have made, and it is important, therefore, that you keep full records of all the decisions you make.
The application process, as well as acting as a Deputy, can be a time consuming and onerous task, and if you have concerns about the affairs of someone who has become, or is becoming, mentally incapable then it is strongly advisable to seek legal advice. To speak to a member of our team please contact us on ……