Understanding Deputyship Orders: A Legal Guide

A deputyship order is a legal arrangement in the UK that allows someone to make decisions on behalf of an individual who is unable to make decisions for themselves due to mental incapacity. This could be due to reasons such as dementia, brain injury or other mental health conditions. If you are concerned about the wellbeing of a loved one who is no longer able to manage their own affairs, applying for a deputyship order may be an appropriate solution. In this guide, we will explain what a deputyship order is, when its needed, how to apply for one and the responsibilities that come with being a deputy.

What Is A Deputyship Order?

A deputyship order is granted by the Court Of Protection in the UK. It allows an individual (the “deputy”) to make decisions on behalf of someone who lacks the mental capacity to do so themselves. The person who is unable to make decisions is referred to as the “P” (the person in need of support).

Deputyship Orders Can Be Put In Place For A Range Of Decisions Including:

Personal welfare decisions (such as medical treatment or living arrangements).
Property and financial decisions (such as managing bank accounts, paying bills or selling property).

There Are Two Main Types Of Deputyship Orders:

Property And Financial Affairs Deputyship: This type allows the deputy to make decisions regarding the finances of the individual. This could include managing bank accounts, handling debts, paying bills and making investments.
Personal Welfare Deputyship: This type enables the deputy to make decisions regarding the care and welfare of the individual, including matters related to their health and well-being, medical treatment, and where they live.

When Is A Deputyship Order Needed?

A deputyship order is needed when someone is no longer able to make decisions for themselves due to a lack of mental capacity. This could arise in situations such as:

Dementia: A person with advanced dementia may lose the ability to make decisions about their own care, medical treatment and finances.
Brain Injury: Individuals who suffer from a severe brain injury may be unable to manage their own affairs.
Mental Health Conditions: Certain mental health conditions can impair an individual's ability to make decisions, especially if the condition is long-term or severe.
Learning Disabilities: Some people with learning disabilities may require assistance in making certain decisions, particularly as they get older.

If an individual is unable to make decisions for themselves and they have not made a Lasting Power Of Attorney (LPA), a deputyship order may be the only option for their loved ones to legally manage their affairs on their behalf.

How To Apply For A Deputyship Order

Applying for a deputyship order is a formal legal process that involves the following steps:

Assessing Mental Capacity: Before applying for a deputyship order, a medical professional or other relevant expert will typically assess the individual’s mental capacity. The Court Of Protection requires proof that the person lacks the mental capacity to make the necessary decisions themselves.
Choosing A Deputy: The applicant for the deputyship order must choose a suitable person to act as the deputy. This person must be over 18 and should be someone trustworthy, as they will be responsible for making important decisions regarding the individual’s life and affairs. The deputy can be a family member, friend or professional, such as a solicitor.
Application To The Court Of Protection: The application is made to the Court Of Protection and the process typically involves submitting a detailed application form, medical evidence about the person’s mental capacity and any other supporting documents. The application process can take several months.
Court Hearing: In some cases, the Court Of Protection will hold a hearing to assess the application. This is particularly true if there is any dispute about the deputyship, or if the court requires further clarification. The court will review the evidence and decide whether to grant the deputyship order.
Court Order: If the court is satisfied that a deputyship order is necessary, it will issue the order, outlining the powers and responsibilities of the deputy. The court may impose certain restrictions on the deputy’s powers, depending on the individual’s needs.

Responsibilities Of A Deputy

Once appointed, a deputy has significant responsibilities and is legally required to act in the best interests of the individual (P). The deputy must follow the rules set out in the Mental Capacity Act 2005, which includes the following key principles:

Act In The Best Interests Of P: The deputy must always act in the best interests of the individual, taking into account their past and present wishes and feelings, as well as any other relevant factors.
Act Within The Scope Of The Court Order: The deputy can only make decisions within the scope of the powers granted by the Court Of Protection. This could include managing finances, making medical decisions, or deciding on living arrangements, depending on the type of deputyship order.
Record Keeping: Deputies are required to keep accurate records of the decisions they make and the actions they take on behalf of the individual. This is essential for transparency and to ensure that the deputy is fulfilling their role correctly.
Annual Reports: For property and financial affairs deputyships, deputies are required to submit annual reports to the Court Of Protection. These reports provide details of the decisions made, financial transactions and how the deputy has acted in the best interests of the individual.
Regular Monitoring: The Court Of Protection may periodically review the actions of the deputy to ensure they are fulfilling their duties correctly. If any concerns arise, the court may intervene or remove the deputy.

Alternatives To Deputyship Orders

Before applying for a deputyship order, it is worth considering other alternatives:

Lasting Power of Attorney (LPA): If the individual still has mental capacity, they can set up an LPA, which gives someone the authority to make decisions on their behalf without needing a court order.
Trusts: In some cases, setting up a trust can be a good way to manage assets and make decisions on behalf of an individual who lacks capacity.

A deputyship order can provide peace of mind for individuals who are no longer able to manage their own affairs due to mental incapacity. It ensures that their welfare and financial matters are managed by a trusted individual. However, applying for a deputyship order is a significant legal process that requires careful consideration. If you are considering applying for a deputyship order, it is highly recommended to seek legal advice to ensure the process is completed correctly.