A Deputy’s Authority – When and How to Extend it.
A Deputy’s powers are limited and set out the Court order appointing the Deputy. When you are appointed as Deputy, the Court of Protection order will set out the extent of your authority to include your powers, duties, responsibilities and importantly how long your authority will last.
You must review the Order to check for any errors and to ensure its accuracy and make a note of any important dates or obligations. For example, a duty to submit a report to the Court upon settlement of an ongoing litigation claims.
The Office of the Public Guardian have recently issued a reminder to all deputies to check the Order and in particular whether their authority is time limited. In the majority of cases, it is likely that the deputy’s authority will last until further order, often as P’s incapacity is likely to be permanent. However, the Court is more and more limiting orders to a specific duration, after which the Deputy must update the Court and seek further guidance.
If order does expire, the Order can no longer be used and the deputy’s authority comes to end. This means anything done after that date can be unlawful.
It is imperative to diarise this date and to consider well in advance whether an application to the Court of Protection will be appropriate. Recently, the Court of Protection can take up to 14 weeks to process applications and issue a Final Order, so a cautious approach would be to consider an application at least 5-6 months prior to expiry.
As a first step it is important to consider P’s capacity and whether since appointment of the deputy, P has regained capacity to manage their property and affairs. As such, it will necessary for P’s capacity to be reassessed to determine whether they will continue to need a deputy.
If P is deemed to continue to lack capacity to manage their property and affairs, the appointed deputy will need to choose to continue in their role, or whether someone else should be appointed in their place. This could be another professional deputy/organisation or a lay deputy (such as a family or friend of P). The appropriateness of the chosen applicant will depend wholly on P’s individual circumstances.
A new application will need to be submitted to the Court of Protection and the following forms are likely to be required:
- COP 1 – Application Form;
- COP1A – Supporting information for property and affairs applications;
- COP3 – Assessment of capacity. An up to date capacity assessment for the Judge to address the issue of ‘capacity’ for the application in question and or;
- COP9 – To seek authority to not have to provide a COP3;
- COP 24 – Witness Statement if required and;
- COP 4 – Deputy’s declaration if the Order has already expired.
As it is a new application to the Court of Protection, the application fee of £385 will apply unless the conditions for exemption or remission of fees apply.