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Legal News

Deputyship in the Court of Protection (24 October 2019)

Date: 24/10/2019
Duncan Lewis, Legal News Solicitors, Deputyship in the Court of Protection

What is a “deputy” in the Court of Protection?

A deputy is a person that is appointed by the Court of Protection to make decisions on behalf of someone who no longer has the mental capacity to make these decisions.

Mental capacity is usually lost due to an impairment or disturbance in the functioning in the brain.

These may be the result of:

  • Dementia, Alzheimer’s disease or other age-related conditions;

  • Traumatic brain injury;

  • Autism, learning disabilities, Down’s Syndrome; or

  • Substance abuse.

In addition to the above factors, there are numerous other factors that can cause somebody to lack the capacity to make decisions.

Losing mental capacity means that individuals may require another person to make decisions on their behalf. These decisions can relate to matters involving the individual’s health and welfare, for example; where they should live, the type of care they require and, on occasion, the type of medical treatment they receive. Individuals may also need someone to manage their property and financial affairs, which can include the management of their bank accounts, paying debts and taxes, and managing any property that they own.

Who is appointed as a deputy?

Usually, a deputy is a family member or close friend of the person needing assistance. However, on occasion, when there is no suitable person able to take on the role of deputy, the Court of Protection will select and appoint an independent deputy from a panel.

A deputy’s decisions, regardless of whether they are making health and welfare, or property and financial decisions, must always be in the other person’s best interests. They should also consider the actions and decisions that the individual took in the past when they still had capacity.

Additionally, the deputy has a responsibility to apply a high standard of care when making decisions and where necessary, they should consult others, such as close relatives or relevant professionals when making decisions. Lastly, the deputy should also always take appropriate measures to try and help the person without capacity understand the decision that has been made.

What happens if they regain capacity?

In many situations the interruption to mental capacity is not permanent and individuals may have only temporarily lacked capacity during that particular period, which saw them needing an independent person to manage their affairs.

Usually, when a person who has lost mental capacity is deemed to have regained it, the duties of the deputies are no longer required and their deputyship is unnecessary.

In some instances, individuals may continue to have a deputy in place despite having regained capacity. This could be due to a lack of regular capacity assessments to ascertain whether they have regained capacity or indeed, incorrect assessments. This can be problematic and often leaves individuals feeling trapped without an answer.

Challenging the appointment of a deputy

In situations where an independent deputy has been appointed from a panel, the selected deputy can sometimes be contrary to the wishes and feelings of the individual concerned. In this scenario, it is possible to challenge the appointment of the deputy.

At Duncan Lewis, we routinely make applications to the Court of Protection to challenge the appointment of deputies for individuals who either have capacity or have regained capacity.

Author Shareen Tanvir is a solicitor in the Duncan Lewis Court of Protection department based in Harrow and has extensive experience in providing in-depth and sensitive assistance to those wishing to make an application for deputyship. Her experience includes successfully challenging court appointed deputies on grounds of capacity and/or best interests; successfully challenging the appointment of an attorney acting under the powers of an LPA; and routinely making deputyship applications.

If you have a deputy in place or require advice and assistance concerning deputyships please contact Shareen Tanvir or Alex Peebles in the Court of Protection department.

Contact solicitor Shareen on 020 3114 1338 or at shareent@duncanlewis.com

Contact director Alex on 020 3114 1218 or at alexp@duncanlewis.com.

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