POWERS OF ATTORNEY
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What is an OPG Deputy?
What types of Deputyships are there?
What is the cost of appointing a Deputy?
There are number of costs required at different stages of making a deputyship application. As well as solicitor fees, you will be required to pay the following (contact us if you want to know what these fees are currently):
- Court application fee.
- if the court decides the case needs a hearing.
- general supervision fee
- A one-off assessment fee for each new deputy.
- Deputies may also have to pay to set up a ‘security bond’ before being appointed as a property and financial affairs deputy. This is a type of insurance that protects the finances of the person without capacity.
There is an additional application that can be made for an exemption from, or reduction of fees if the person without capacity is entitled to certain benefits or has an income below £12,000 per year.
Why is a Deputy needed?
A deputy will only be appointed by the Court of Protection, upon an application being made, if they believe that the person relating to the application has no capacity to make decisions for themselves and they require somebody else to make those decisions for them.
Who applies for Deputyship?
Anyone can apply to be a deputy, as long as they are over the age of 18 years old. Deputies are usually close relatives or friends to the individual concerned. When looking at the application, the court will consider the relationship between the person without capacity and the proposed deputy (or deputies) when deciding whether the application would be in the person’s best interests.
How long does it take to get a Deputy appointed?
A deputyship can take between five to eight months to be granted. It can take even longer if the court needs more information or requests a hearing.
What is the process for appointing a Deputy?
The proposed deputy (or deputies) makes an initial application to the court with the court fee(s). They are required to send an application form (COP1), details of the person without capacity’s financial details if making a property and finance application (COP1A), details of the person without capacity’s personal welfare if making a health and welfare application (COP1B), personal statements/declarations (COP4) and a capacity assessment carried out by a certified medical professional who also completes a form (COP3).
After the court confirms the suitability of the proposed deputy (or deputies), the deputy (or deputies) will need to serve notices to those that may be considered as having an interest in the application (e.g. relatives that are not proposed deputies). Providing there are no objections, the court should then be able to grant the deputyship.
What is the difference between power of attorney and Deputyship?
LPAs must be made prior to somebody losing capacity. On the other hand, a deputyship order is made once capacity is deemed to have been lost and health / financial decisions need to be made, but where nobody has been given prior legal authority to do so (e.g. by way of an LPA).
Who must be notified of a Deputyship application?
There are many individuals who will need to be notified of the intended deputyship application, unless there is a specific reason why they should not be notified. For example, they could be estranged from the person who’s lost capacity. The Court of Protections sets out the following ‘classes’ of individual who need to be notified:
- Spouse or partner ;
- Person who is not a spouse or partner but who has been living with the person to whom the application relates as if they were;
- A parent or guardian;
- Brother or sister;
- Grandparent or grandchild;
- Aunt or uncle;
- Niece or nephew;
- Half-brother or half-sister.
Each individual has different circumstances and relationships and not all of these will apply.
What are the duties of a Deputy?
A deputy is appointed to act in the person’s best interests, and they should think about the person without capacity’s past and present wishes to make decisions carefully to ensure that they are in the best interests of the person affected. They must also act in accordance with the instructions provided by the Court of Protection if they have deputyship over the person’s property and financial affairs. For example, the court will impose a duty on the deputy to keep financial records and the person’s money and property separate from their own.
What is a Deputyship order?
A deputyship order gives the appointed deputy (or deputies) the ability to make important decisions on behalf of the person who has lost capacity. These can involve the care, property and financial of the person. The order can be used when there is no LPA in place.
Can a Deputy be replaced?
Yes. A deputy can be removed and/or replaced by the Court of Protection. An application to the court will need to be made, and the replacement will only be made in the best interests of the person who has lost capacity.
When does a Deputyship end?
Naturally, a deputyship will end when the person affected or the deputy has died. In the event of the individual dying, the OPG and the Court of Protection must receive a copy of the death certificate. The Court of Protection may also make an order which discharges the deputy from their duties, which is usually done whilst the individual is still alive, e.g. replacing a deputy.
What’s the difference between LPAs and Deputyship?
Like LPAs, Deputyship refers to the process through which a named individual acts and makes decisions on the behalf of someone else. The difference lies in who names this specific individual – with LPA being the process of assigning your own power of attorney, while Deputyship occurs when the Court of Protection makes the decision for you.
This is most likely to occur when the individual already lacks the mental capacity to make their own decisions, and so a relative or solicitor will be appointed to handle the ongoing property and financial affairs, as well as issues of wellbeing and welfare. As a structured and supervised process, deputyship is essentially the back-up plan for those who have not made their own LPA, presenting a means of ensuring protection and control over their affairs when they lose mental capacity.
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