Do you need a property and financial affairs Deputy?

When someone loses the mental capacity to manage their own financial affairs, decisions about their property and money still need to be made. A property and finances Deputy makes this possible, but many families do not know it exists until it is too late.

In this guide, our Court of Protection lawyers explain what a property and financial affairs Deputy is and when someone might need one.

What is a property and finances Deputy?

A Deputy is appointed by the Court of Protection under the Mental Capacity Act 2005 to act or make decisions on behalf of someone who lacks the capacity, whether through dementia, a brain injury, stroke or another condition, to do so themselves.

There are two types of Court of Protection deputyship:

• A property and financial affairs Deputy
• A health and welfare Deputy

A property and affairs Deputy is authorised to make decisions about financial affairs on behalf of P (the Protected Party), including a person’s money and buying and selling their property.

Anyone aged 18 or over, who is not bankrupt or subject to a CCJ, can be a Deputy. It is normally a friend or family member (a Lay Deputy), or a professional Deputy, usually a lawyer or solicitor.

What does a property and finances Deputy do?

A property and finances Deputy is given specific powers by the Court, which typically include:

• Managing P’s bank accounts and day-to-day finances.
• Paying bills, care fees and other outgoings.
• Collecting pensions and benefits.
• Managing savings or investments.
• Making decisions about P’s property, including whether to buy or sell a home.
• Deciding on and managing home adaptations for P.

The Deputy’s authority is defined within the Deputyship Order, and they cannot act beyond what this permits. Generally, there tend to be more restrictions placed on lay deputies than professional deputies. A Deputy must always act in the best interests of P.

How is a Deputy different from an LPA Attorney?

This is a common question and point of confusion.

A Lasting Power of Attorney (LPA) and Deputyship Order both allow someone to manage another person’s finances, but that’s really where the similarities end.

With an LPA, you create this yourself (with a legal professional) and in advance, when you still have mental capacity. You choose who you want to act for you, and it is very much a planned and proactive legal arrangement.

Deputyships are more reactive. They become necessary after someone loses mental capacity and no LPA is in place. You cannot make a Deputyship yourself; the Court of Protection must be involved, and the process is far more complex and time-consuming. This is why it is vital to seek legal advice as early on as possible. A Deputy is also subject to ongoing supervision by the Office of the Public Guardian, whereas once an LPA is finalised, it is rare that any further guidance or ‘checks’ are required.

In summary, if there is time to plan for a loss of mental capacity, an LPA is the best option. A Deputyship becomes necessary when that window has passed.

Read more about the difference between an LPA and Deputyship here.

When does someone need a property and financial affairs Deputy?

The need for a property and financial affairs Deputy typically arises in one of the following situations:

• Someone loses mental capacity, and there is no LPA in place.
• Someone is diagnosed with dementia, and they are no longer able to make or communicate financial decisions.
• Someone has a brain injury, either through illness or an accident.
• When a child receives compensation through a personal injury or medical negligence claim, and they are assessed as anticipated to lack the capacity upon turning 18, a Deputy is appointed to manage those funds. However, in some cases, it can be too early to determine their anticipated capacity, and so it may be that a minor trust is more appropriate, with P’s capacity to be reassessed upon turning 18.

Who can be appointed as a Deputy?

Technically, anyone over the age of 18 can be a Deputy. However, the Court will consider whether that person is suitable, considering their relationship with P, their own financial reliability and whether their appointment is in P’s best interests.

If P’s estate is particularly large or their finances are complicated, the Court of Protection may decide that it is best to appoint a professional Deputy instead. The fees payable to the professional Deputy are paid from P’s estate.

If there is a dispute between family members as to who should manage someone’s affairs, or there are concerns about how a person’s finances are being handled, the Court of Protection can appoint a Professional Deputy to manage this instead.

How to apply for a Deputyship Order

There are several steps to take when applying to become a property and financial affairs Deputy, and the process can be complex, especially if you have never done something like this before.

The application process involves the following:

• Gathering medical evidence to support your application, including an assessment of P’s mental capacity.
• Completing the relevant court forms: a COP1 (if completing the application by post), a COP1A, a COP3, a COP4 and COP24.
  • You will be expected to outline the powers you are seeking, explain why your appointment is in P’s best interests and provide information about P’s financial circumstances.
  • If you are seeking permission to sell or purchase a property at the same time, additional information as to why this is in P’s best interests will be needed.
• Notifying relevant parties, including P.
• Paying the court fee once an order is granted.

The court process typically takes several months. In urgent cases, it is possible to apply for an interim order. If an application is urgent, a further COP9 form needs to be filed.

Contact our Deputyship solicitors

If someone you love has lost mental capacity and there is no LPA in place, our Court of Protection solicitors can guide you through the next steps.

Contact our specialist team on 0117 325 2929 or fill out our online enquiry form.