If somebody loses mental capacity and they have a Lasting Power of Attorney (LPA) in place, their attorneys (the people they’ve chosen and legally appointed) step in to make decisions on their behalf. If they do not have an LPA in place at the time of losing mental capacity, a loved one or suitable professional associated with the individual would need to apply to the Court of Protection for deputyship.
Applying for deputyship in England can be a time-consuming and costly process. Still, it is essential to ensure that decisions are made in the best interests of someone who lacks the mental capacity to make them themselves.
People may lack mental capacity due to serious brain injury, severe learning disabilities, or illnesses such as dementia or Alzheimer’s disease, so it is always best to be prepared and make sure you have an LPA in place while you have clarity of mind.
Deputyship order meaning
Deputyship is a legal arrangement whereby a person (the deputy) is appointed by the Court of Protection to make decisions on behalf of someone who lacks mental capacity and does not have a power of attorney in place.
There are two types of deputyships:-
- Property and Financial Affairs Deputyship: Managing financial matters, e.g. paying bills and selling property.
- Personal Welfare Deputyship: Making decisions about personal care and medical treatment.
Who can apply to be a deputy?
Anyone over the age of 18 who has mental capacity. The applicant can be a friend, family member or professional. The applicant must demonstrate to the Court of Protection that they are suitable for the role of deputy and that the person needing assistance lacks mental capacity.
Responsibilities of a deputy
As a deputy, you must act in the best interest of the person you are helping. This involves considering the person’s past and present wishes, feelings, beliefs and values. Deputies must make decisions on behalf of the incapacitated person and ensure that the decision is made with a high standard of care and in the person’s interest. A deputy must keep meticulous records of all decisions and actions taken on behalf of the person. Deputies must submit annual reports to the Office of the Public Guardian detailing their actions and the person’s financial status. These reports are reviewed to ensure compliance with legal and ethical standards. Deputies must ensure transparency in their actions and decisions.
Common Questions and Answers
The Scott Bailey Wills, Trusts and Probate team have answered some of the most commonly asked questions surrounding deputyship:
Is deputyship the same as power of attorney?
No, it is not the same, although both involve making decisions on behalf of someone who can’t do so themselves. The difference is in how and when they are set up. Lasting Power of Attorney (LPA) is set up in advance while the person still has mental capacity. It comes into effect if/when the person loses capacity, possibly from an illness, accident, or injury. Deputyship is used when the person has already lost capacity and does not have an LPA in place.
How long does it take to get a deputyship order?
Becoming a Deputy is likely to take 4 to 6 months. However, as of May 2025, the courts are experiencing severe delays, and the likely timescale is 9 to 12 months.
What happens if there are objections to my application?
The Court of Protection will review any objections and may hold a hearing to resolve the disputes. The court aims to ensure that the appointment is in the best interests of the person lacking mental capacity.
Can I share deputyship responsibilities with someone else?
Yes, you can apply to be a deputy with another person.
How much does deputyship cost?
Besides the application fee, a court hearing may be required; therefore, a fee will be required for that. There are ongoing costs such as supervision fees, legal fees, and costs associated with managing the person’s affairs.
In addition, deputies must obtain a bond to protect the assets of the person they are managing. The bond typically costs between £100 and £500 annually, depending on the value of the estate and the level of risk involved. The bond acts as insurance, safeguarding the person’s assets against any potential mismanagement by the deputy.
How long does the deputyship last?
A deputyship continues until the court order is cancelled or expires. For example, this could be due to the person dying, or the court could remove you as deputy if they believe you are not acting in the person’s best interests or if you have mismanaged their financial affairs.
Can I make decisions about selling a person’s home?
The Deputyship order issued by the Court of Protection will set out what authority the deputy has in relation to a person’s financial affairs. Selling a person’s home will require specific authority from the Court of Protection.
What supervision is in place for Deputies?
The Office of the Public Guardian supervises deputies by reviewing annual reports and conducting visits if necessary.
Can I make gifts on behalf of the person I am looking after?
Deputies can make small, reasonable gifts on customary occasions, such as birthdays and Christmas, but need court approval for significant gifts or purposes like inheritance tax planning.
What is a reasonable gift?
What is considered reasonable will vary from person to person. When determining if a gift is reasonable, it is essential to consider the person’s financial situation and ensure that the gift does not negatively impact their ability to pay for their care. The gift should reflect what the person would have wanted if they had the mental capacity to decide.
Can a deputy give a gift without authority from the court?
Deputyship Orders do not give the deputy authority to spend a person’s money as if it were their own. Suppose a deputy gives a gift without proper authority. In that case, this may result in you being asked to seek repayment from the recipient of the gift, or you may need to seek retrospective approval from the Court of Protection for the gift, or you may be removed as a deputy.
Do deputies need to involve friends and family in decision-making?
Deputies should consult with friends and family if appropriate to ensure that they are making decisions in the best interests of the person they represent. For example, they might discuss care options with the person’s relatives before making a final decision.
What if a person regains capacity?
If the person regains capacity, you can apply to the Court of Protection to end the deputyship.
What if my deputyship is denied?
There are no guarantees that the Court of Protection will appoint the applicant. The Court of Protection looks at who is best placed to look after the affairs of the person lacking mental capacity. If the person lacking mental capacity has complicated finances or family disputes, then the court may appoint a professional deputy instead.
Are there alternatives to deputyship?
If a person has the mental capacity to manage their affairs, they can make a Lasting Power of Attorney (LPA) to appoint people of their choosing. The LPA can manage their property, financial affairs, and health and welfare decisions if they lose mental capacity.
If a person has lost mental capacity but has minimal savings and requires assistance managing state benefits, then someone could become an appointee for a person who has lost mental capacity and who is on state benefits.
Expert legal support for deputyships and LPA agreements
Applying for deputyship is a significant responsibility that requires careful consideration and adherence to legal requirements. By understanding the process and your duties, you can ensure that you act in the best interests of the person you are helping. For expert advice and guidance, our excellent Wills, Trusts, and Probate Solicitors are here to help.
