11th October 2023 • Scott Maddox

In this interview, we introduce Nicole Boon who is a Solicitor at Langley Wellington.

We asked Nicole about the ins and outs of what Deputyship looks like. She told us all about the application process, what the duties include and more.

In this article, the person who has lost capacity will be referred to as person P.

What is a Deputyship Order?

Firstly, speaking about when a Deputy can be used, Nicole told us that a Deputyship order is an order from the Court of Protection authorising a person to act on someone else’s behalf who had already lost capacity. Where person P has lost capacity and bills need to be paid such as care home fees, and there is no formal Lasting Power of Attorney in place, a Deputyship order can be applied for through the Court of Protection so someone, known as a Deputy, can look after P’s finances or their health.

Who can apply?

Explaining who can apply for a Deputyship order, Nicole told us that everything is judged on a case-by-case basis. The biggest question is why – why are you applying, are there children involved? It may be the case wherein P does not have any family, children, spouses or siblings, so a friend or distant relative may be applying. Nicole stressed that it is all about whether there is a legitimate reason that person is a suitable candidate.

In some cases, Nicole highlighted that there are companies that will act as deputies for individuals who may not have any family or friends willing to take on that responsibility. It may also be the case that a professional is better suited to avoid conflicts of interest between siblings, for example.

What are the types of Deputyship Order?

Nicole also told us about the two different types of Deputyship order – a finance and property Deputy order and a health Deputy order. She explained that a finance and property Deputy order allows a Deputy to deal with someone’s finances. Usually, it covers being able to access bank accounts, paying bills, managing P’s money, paying their care home fees, and more. Nicole noted that you are able to ask the court for additional powers if there are specific assets that you want to make sure are covered, such as the authority to sell a property on P’s behalf or permission to manage an investment portfolio. She stressed that it is best to get the wording put in the court order from the Court of Protection to avoid ambiguity.

With a health Deputyship order, Nicole explained that this covers being able to be involved in someone’s medical treatment, making sure you know where P lives and that they’re being looked after, choosing P a residential care home, having access to the care they receive, and more. You may be in control of what they eat, what they wear, and who they can visit. However, Nicole noted that the court usually look for more of a collaborative approach rather than giving someone’s health responsibilities solely to one person. She emphasised that the court must have concrete justification as to why one person is being appointed to look after all of those needs, where it may be better for everyone to be involved in such decisions.

The Deputyship Process

When asked what the Deputyship application process looks like, Nicole recommended that independent legal advice should be sought because of the lengthy process and number of documents required. She detailed that legal professionals will be able to help with forms, meeting with the client and collecting details, and notifying important people about the Deputyship order. If there are any concerns, these can also be raised with the Court of Protection.

Once the details of P’s finances have been gathered and there is a capacity assessor willing to confirm P does not have capacity, this is when the application forms can be filled out and important members of the family can be notified, Nicole told us. The information should be submitted to the Court of Protection who will guide you through the process. There will be periods where you may have to visit P to serve notice and inform them you are applying to become their Deputy as a part of the process, though it is key that the assessor can see that P has lost full capacity.

Nicole also noted that the application process can last for 9 months or more. She explained that, in the case of someone applying to look after P’s health, some of the questions may include, why is that person the most appropriate person, why is it they are waiting to be appointed, and is there someone better suited? This person then must go through checks and confirm they’re not bankrupt, that they’ll act in P’s best interests, that they’ll make sure they’re being looked after and so on. With such an intense role, Nicole reiterated the need for legal guidance to ensure the position is right for you.

She also emphasised that the amount of information needed when applying is large. You’ll need details of all bank account, account numbers, sort codes, values, national insurance numbers, details of any stock and shares, investments, ISA’s, any inheritance that may be due, any property or land they own, all sources of income and maybe more. You may be able to ask for a court order to liaise with the bank to gain the information needed, but she emphasised that the process is lengthy.

In terms of ongoing duties, Nicole explained that accounts must be sent to the Court of Protection each year justifying where every penny of P’s money has gone. Things like care home fees are acceptable, but the court may ask for justification for other expenditures which may include things like a new bed, chair, or adaptations around the house to make P’s life more comfortable. She stressed the continuous responsibility of the Deputy whilst P is alive.

In addition, Nicole mentioned that there are ongoing supervision fees that must be paid to the Court of Protection under a Deputyship order. It may also cost you more in time and money to consult a legal professional.

How do I set up a security bond?

When applying for a Deputyship order, the stage for setting up a security bond will eventually arise. Designed to safeguard the assets of P and pay any financial losses suffered as a result of the Deputy, Nicole explained that the process is very simple with the assistance of the Court of Protection. She noted that they will guide you through the sections of the application smoothly. You will be sent a confirmation letter and once you pay the bond, the process is complete.

Are there any limitations on a Deputy’s authority?

In terms of limitations, Nicole explained that it is down to what is included in the court order or what isn’t. In some cases, such as selling property, a specific power is usually arranged with the court. If you’re aware of a client with a large investment portfolio, it might be managed by someone else rather than the Deputy themselves such as an accountant.

Where can I go for help?

When asked where help can be found during the Deputyship application process, Nicole stressed that the first option would be the Court of Protection. If you believe someone who is applying is not a good fit, or perhaps they’ve lied on the application form, the Court of Protection can help. With the power to investigate and look into people, they are under no obligation to grant a Deputyship order, so raising your concerns this way would be the best option.

If you are a Deputy yourself and you’re finding it hard or perhaps your personal circumstances have changed, Nicole advised the Court of Protection and seeking legal advice. She also explained that some local authorities have a Client Affairs Team where members can act as deputies for those who don’t have family members to assist them, so reaching out to the Local Authority Adult Social Services would be an option. It may be that they’re in a position to potentially look at getting a new court order with the name of a member of their team on it to take over.

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