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Why make the decision to have a professional (property and financial affairs) deputy and what is the difference between a lay deputy and a professional deputy?
If someone does not have capacity to manage their own property and financial related affairs, the Court of Protection will appoint either a lay deputy, professional deputy or both, to manage the persons property and financial related affairs. A lay deputy is usually a friend or relative of the person who has lost capacity, whereas a professional deputy is someone who is usually a solicitor or other type of professional that manages clients’ affairs as their day job. A person lacks capacity if they are unable to make decisions. This may be due to a permanent medical condition, drug/alcohol induced conditions or even dementia.
How can Stephensons help?
Being a deputy can be challenging and time consuming. A deputy is responsible for acting in the best interests of the person who has lost capacity, adhering to the deputy standards and submitting an annual report to the Office of the Public Guardian. This applies to both lay and professional deputies. We will, at the outset, need to arrange for an assessment of the person’s capacity by a suitable expert. If the person is deemed to have capacity then they should be able to manage their own affairs but may still require some help.
If they do not have capacity, then an application will need to be made to the Court of Protection to appoint someone to look after their financial affairs.
Stephensons Trust Corporation has four directors who are all senior and experienced qualified solicitors/partners. They are assisted by the Court of Protection team who have specialist expertise and experience in assisting clients who do not have capacity. Some of our clients have been awarded large clinical negligence, personal injury or criminal injuries compensation and the court will usually order that a professional deputy is appointed to oversee the finances. In addition, Stephensons Trust Corporation also assist elderly clients who do not have any family members who are able to act as deputies. They may need to sell their property to contribute towards care home fees and we assist them in doing this.
Stephensons Trust Corporation act as professional deputy for a number of clients of all ages and help to support both the person who has lost capacity but also to work closely with their family to enable them to be ‘family’. This enables them to spend time with their loved ones, as opposed to having to manage all of the finances and affairs, getting tied up in administrative tasks and taking precious time out of their usually already busy schedules.
The team has vast experience in supporting clients that have brain injuries, cerebral palsy, mental health problems, drug and alcohol addictions, generally challenging circumstances and clients that have been victims of financial abuse and exploitation. In addition, we are on local authority panels to assist elderly clients who no longer have capacity and do not have any appropriate people to assist them.
In addition, Stephensons also have an in-house specialist health and welfare team to deal with any issues that clients may need support with relating to these issues.
Our solicitors are caring, compassionate and understanding of the challenges that our clients and families face and are on hand to assist with any queries. The team is passionate about providing an excellent standard of service and building good working relationships with our clients, their families and their therapists.
If you would like further information on how we can help you, please call us on 0161 696 6238 for a no obligation initial chat with one of our advisors. We have a team of friendly and approachable advisors who are waiting to take your call. They will talk to you about your situation without using legal jargon and they will do their best to make you feel comfortable and at ease. If you don’t want to call us initially you can contact us at a time most convenient to you, anytime of the day or night, through our online enquiry form and we will get back to you as soon as we can to see if we can help.
In order to make decisions on the behalf of a loved one or family member who is mentally incapacitated, if you do not have a Lasting Power of Attorney, you must go through the Court of Protection. Applying the Mental Capacity Act 2005, the Court of Protection supervises the personal welfare and financial decisions of those who are unable to make decisions themselves due to a mental illness or cognitive impairment.
The Court of Protection prevents a mentally incapacitated person from being taken advantage of, making sure that any decisions made are in the person’s best interests. They enforce a formalised legal process in which individuals must apply for Power of Attorney and/or a deputyship, to verify that they are the right person to take on this kind of responsibility. In addition to this, the Court of Protection can also review decisions to see whether or not they violate the rights of a vulnerable individual under the Mental Capacity Act.
In order to obtain a deputyship, you must go through the application process. There are very strict terms and requirements that need to be fulfilled, as well as evidence you will have to present to the CoP, so it is sensible to seek the advice of an experienced solicitor.
Depending on the evidence that the CoP wants you to submit and the time it takes them to review your application, the approval wait can vary. However, most applications tend to be approved by the CoP within 4-6 months if all information is provided and forms are filled out to the correct standard.
A CoP order only lasts as long as a vulnerable individual requires another party to make decisions on their behalf, so if they are deemed capable to make these choices then they will regain control over their affairs. Additionally, if the vulnerable individual passes away the order will be terminated as it is no longer needed.
Whilst an LPA is appointed by a vulnerable individual prior to incapacitation to make decisions on their behalf, a deputyship is decided by the Court of Protection when an LPA has not been chosen already. There can be two types of deputy, one that controls any decisions made regarding financial assets and affairs, as well as a deputy who makes decisions to do with the vulnerable individual’s personal welfare.
The decisions a deputy can make are the deputy is something that the Court of Protection will decide.
Individuals in these roles can be in charge of either, or both, financial affairs and personal welfare, which includes the ability to:
Financial affairs:
Personal welfare:
In some cases, there will be relatives and loved ones of the vulnerable individual who believe that an alternative deputy would be better suited to the role. This may arise as a result of disagreements or a belief that the deputy does not have the individual’s best interests at heart. If you and your family want to raise a dispute regarding the chosen deputy, then you may submit an application to the CoP to have this changed.
If a person lacks the mental capacity to make a will for themselves, then a statutory will can be written up and approved by the CoP on their behalf.
However, if you or your family believe that the statutory will does not properly reflect the wishes of the vulnerable individual then you can appeal to have it changed. You may also want to appeal if you believe the deputy is not acting in their best interests, or if you believe the vulnerable individual has the capacity to write their own last will and testament.
We offer guidance in relation to whether we are able to assist with a professional deputyship and then we charge an hourly rate in relation to the services that we provide after that. The cost of a professional deputy is paid from the assets of the person who lacks capacity and there are strict rules in relation to deputyship costs that are set by the Court in order to ensure that they are reasonable.
The cost of a lay deputyship application to the Court of Protection is £1,204 plus VAT and third party costs. This is the fixed fee allowed by the Court of Protection. However more often than not the work involved in the application does tend go above the £1,204 plus VAT especially if you require authority from the Court to either sell or purchase a property. In the likely event that the work is higher than £1,204 on the file then you can agree a cost with the Solicitor or alternatively request that the costs are assessed by the Senior Court Costs Office. The third party costs involve the Court of Protection fee of £408. Other fees include obtaining capacity assessments in which the fee varies depending on who completes this.
To learn more about how our specialist solicitors can help you with applications, disputes, hearings, and other related issues, call us on 0161 696 6238 or complete our online enquiry form and we will contact you directly. We have a number of locations across the country boasting a fine selection of talented Court of Protection solicitors, including Manchester, London, St Helens, Wigan, and Bolton.
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