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The Court of Protection deals with health, welfare, financial and property affairs for people who lack the mental capacity to make decisions for themselves. The Court of Protection has other powers such as appointing deputies, handling emergency applications to decide about a family member and makes decisions about when a family member can be deprived of their liberty under the Mental Capacity Act 2005 (MCA).
Family members often assume they can automatically take care of matters on behalf of someone if they become unable to do so themselves. However, individuals are required to put a Power of Attorney in place by choosing an Attorney or Attorneys who they would like to handle their health and welfare, property, and financial affairs on their behalf. This must be created by the individual whilst they have the mental capacity under the MCA. The MCA states that an individual is unable to make a decision if they are not able to do the following.
Furthermore, the MCA states that individuals may not have the capacity to make one decision but may still have the capacity to make other less complex decisions.
Where an individual does not have Power of Attorney already in place and that individual has lost mental capacity, family members can apply to the Court of Protection to become a Deputy so that they may have the right to make decisions on behalf of the individual. There is the option of having a solicitor or an accountant that can be paid to act as the individual’s deputy. Where there is no one available to become deputy, the Court of Protection can appoint a Panel Deputy to make decisions on behalf of an individual.
The Court can appoint 2 or more deputies for the same person. The deputies need to inform the Court on whether they will have a joint deputyship where all the deputies must agree on decisions or jointly and severally where deputies are able to make decisions independently of one another. However, deputies must still work together to make joint decisions where the overall decision has a higher impact on the individual. This will include decisions such as selling the home the individual currently resides in.
When deciding to apply to be a deputy for an individual, you must determine whether this will be over the person's property and affairs (finances), their personal welfare (health and care) or both. When making this application, you must provide the Court of Protection with justification for each application. This means you must be able to advise why you need to be the deputy of both the finances and care of an individual.
To apply to become a Deputy there is an application fee of £371 (paid twice if you apply to become both types of deputies) and a supervision fee of £320 for general supervision or £35 for minimal supervisions where you are managing minimal property and affairs.
A £100 assessment fee must be paid if you are a new Deputy. If the Court decides a hearing may need to take place, then a hearing fee of £494 will apply. The forms to apply for Deputyship are located on the government website at www.gov.uk/become-deputy.
You will need to complete the following forms.
The Deputy must ensure all decisions made are in the best interests of the individual and ensure they apply a high standard of care. Where it is found that a Deputy has not acted in the best interests of the individual the Court of Protection has the power to remove them or amend the authority they have.
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