The key role of a Deputy is to protect and manage the financial affairs of the Patient. This will only be necessary if there is no other way the affairs can be managed. People often have an Enduring or Lasting Power of Attorney which was put in place before they lost mental capacity in which case it may be possible to take the necessary steps without a Deputy being appointed.
John suffered a stroke and lost the ability to make decisions about his financial affairs. On his discharge from hospital to the rehabilitation unit his family needed to consider how his long term care could be funded. It was decided his bungalow should be sold. As he had a registered Enduring (or Lasting) Power of Attorney no application to the Court of Protection was needed and the bungalow could be sold without a Deputy being appointed.
There may be a family member who is well placed to make the required decisions for the Patient. If there is no one who can take up the role a professional Deputy should be considered or the Court of Protection will appoint someone such as Anthony who is one of their sixty-four panel deputies across the country.
Ethel, 89, was struggling to maintain control of her finances. Her doctor confirmed she had vascular dementia and a Deputy needed to be put in place as she had no power of attorney. Her two children fell out many year ago and do not get on. They both objected to each other being appointment and the Court of Protection decided that a Court of Protection panel Deputy should be appointed.
If Ethel had a close knit family they could decide between the two of them who was best placed to act as Deputy. The Court would then have appointed the proposed Deputy.
The process is often viewed as complex and time consuming. The Court requires a detailed audit in relation to all the Patient's financial affairs including bank accounts, property and valuable items. A medical report is required and notification then needs to be given to the Patient and other family members. One needs to set out in the application what one is asking the Court to order.
It can take up to 21 weeks for the appointment to be made unless the application is fast tracked in which case it will normally take 8 to 12 weeks.
After submitting the application to be appointed as his mother's Deputy, John realised the position was now critical as he needed to access her funds to pay for her nursing home. We were instructed to send in a fastrack request reducing the processing time from X to Y weeks to make sure there was no unnecessary delay.
It will depend on the Order appointing the Deputy. The Court will consider all the circumstances and make an order that it feel is appropriate.
William is appointed as Deputy for his Aunt Dorothy. He makes the application himself. The order appointing him restricts the level of expenditure he can make on her behalf and states he has to take financial advice within 12 months. In this instance William instructed us to make a second application to ensure the Court order provided him with the powers he needed.
After the Court has made the order it will request that an insurance bond is put in place to protect the Patient should fraud or theft occur. The Patient is then protected in such an event and reimbursed by the insurance company. The sum is determined by the amount of money the Patient has access to over a 2 to 3 year period.
If a solicitor makes an application for a Deputy to be appointed the Court of Protection guidelines set out that that the recoverable costs are £850 + vat for making the application. If the fixed costs are considerably lower than the work the solicitor has had to do then the costs can be assessed by the Senior Courts Costs Office (SCCO) who determine how much the solicitor should be able to recover for the work undertaken.
The costs of the application are payable from the Patient's money once the Deputy order has been paid.
There is also a Court fee of £400.00 when the application is made.
There are a number of situations in which you can apply for an exemption including if the Patient is in receipt of income support, income - based job seekers allowance, state pension guarantee or council tax benefit. You may also be eligible for a reduction if the Patient's gross income is less than £16501.
The Court decided that none of Ethel's adult children would make a suitable Deputy. A considerable amount of work was undertaken as there was a lot of family disagreement. The court order appointing the Deputy allowed for either fixed costs to be recovered or for the costs to be presented to the SCCO so the solicitor could recover what was fair and reasonable.
Contact: Anthony Fairweather
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