The role of a Deputy in helping an individual who has lost mental capacity
It may be useful to refer to our list of Abbreviations Used in Community Care Law.
If a loved one has lost mental capacity and did not make an Enduring Power of Attorney (EPA) or LPA, you will need to make a Deputyship application to the Court of Protection so you can manage their property, affairs or personal welfare.
If the application is successful, the Court of Protection will make an order appointing you as a Deputy. Deputies are accountable to the Court of Protection and must act in the best interests of the person who lacks capacity at all times in line with the Mental Capacity Act 2005 and Code of Practice.
The decisions you can make as Deputy will be set out in and limited by the Deputyship order. Personal welfare decisions may include the right to decide where someone lives and receives care and treatment. The Court may be reluctant to make a general Deputy Health & Welfare appointment, and tends to prefer issue-specific applications.
In 2020, the Court of Protection ruled that a Deputy will need specific authorisation to conduct litigation on behalf of the individual who has lost capacity. In a case known as Re ACC, the Court found that if the Deputy wants to challenge a negative decision by Health or Social Services – for example an appeal about NHS CHC eligibility or a judicial review about an inadequate care package, then they need to obtain permission from the Court to take such steps and to incur expenditure.
For more information on this, read our Frequently Asked Questions on When does a Lay Deputy for property and financial affairs need permission from the Court of Protection?
A Deputy application is more time-consuming and costly than making an LPA so it is always advisable to make an LPA whilst you still have mental capacity. The fee for a Deputy application to the Court of Protection is £365 and there are solicitors’ costs for preparing the application and notifying interested parties of the application. The team at Martin Searle Solicitors can normally help with a Deputy application for an agreed fee. We can also assist with annual Deputy Report Forms.