Is a Deputyship for life?

Deputy: A Definition

A Deputy is a representative appointed by the Court of Protection (COP) to manage the property and financial affairs of a person who lacks capacity to do this themselves.  A Deputy can also be appointed in respect of an individual’s Welfare.  A Deputyship is necessary where a person has lost capacity and there is no valid Lasting Power of Attorney (LPA) in place clearly demonstrating an individual’s wishes as to whom they would want to act on their behalf during any  periods lacking mental lucidity or incapacity

The transition from vulnerable person to protected party?

A vulnerable party comes within the jurisdiction of the COP, insofar as Deputyships are concerned, where there is medical evidence of mental incapacity. By this, I refer to the inability to make decisions on financial affairs as just one example. The COP will appoint either a Professional Deputy, who will often be a Solicitor, or a Lay Deputy, such as a family member.

The COP will decide whether the vulnerable party falls within the remit of the COP and should therefore become a protected party (P).

Once the COP has determined that the applicant is the most appropriate person to act in the best interest of P, the COP is then able to delegate authority over P’s assets,  by appointing a Deputy to act on P’s behalf, under the terms of a Deputyship order.

Replacing a Deputy… Why?

There may be situations where the appointed Deputy needs to be replaced.

The power to remove a Deputy is given to the COP by virtue of section 16(8) of the Mental Capacity Act (MCA) 2005 . The COP may replace an appointed Deputy who has behaved in a way which contravenes the order or in a manner which is not in P’s best interests.

I have assessed two situations below, where the COP will discharge the existing Deputy and appoint a new Deputy in his or her place.

The Deputy wishes to be discharged

1. The Deputy is no longer able to, or no longer wishes to act and requests to be replaced.

This might be relevant where a Deputy feels they are no longer able to act pursuant to the Order due to illness or increased work-related pressures, or alternatively,  where a Professional Deputy wishes to retire from practice.

Furthermore, it may no longer be financially viable or remain to be in the best interest of P, to continue with the Professional Deputyship.

In the case of a Deputy who wishes to be replaced, this will be simply a question of who will replace them and whether the proposed new Deputy is an appropriate replacement.  Any such replacement will have to be sanctioned by the COP.

P wishes to change their deputy

2. It is no longer appropriate for a Deputy to continue to act and it is necessary to make an application to the court for the removal of the Deputy. This might be relevant when there has been a breakdown in the relationship between P or P’s family and the Deputy.

If P or P’s family believe the Deputy is no longer acting in P’s best interests, an application can be filed to request that the current Deputy is discharged and replaced.

An application will need to be sent to the Court of Protection with details of the proposed new Deputy and confirmation as to the retirement or resignation of the current Deputy. The same application forms will need to be completed as they were for the original Deputyship application,  such as the COP1, COP1A, COP3, COP4, COP9 and COP24 as appropriate.

Removing a Deputy… When?

The Deputy’s authority will continue for so long as the terms of the order allow, unless P regains capacity and no longer falls within the jurisdiction of the COP.

There are two additional circumstances where an Deputyship order might be revoked or brought to and end:-

P regains capacity

1. If P has regained capacity, the existing Deputy will be required to report to the COP, filing the relevant COP1, COP3 and COP9 forms. This would be appropriate in a situation where P’s condition has improved to such an extent that P is now able to make to their own decisions about their financial and property affairs. The COP will examine the expert medical reports about the individual’s capacity and come to a decision. If they agree with the application, the Deputyship will be cancelled and not replaced with another. This process can often take 3-6 months.

P passes away

1. The COP is clear that their jurisdiction applies only during P’s lifetime or while P lacks capacity. If P dies with a Deputyship order in place, the Deputyship comes to an immediate end.

My colleague has explained the various practical steps which must be completed on the death of P in an earlier blog ‘The duty to notify the Office of the Public Guardian on death of a Deputy and/or Protected Party’ .

The power to manage P’s Property and Financial affairs will subsequently transfer to the appointed Executor or Administrator under either a Grant of Probate, where a valid Will exists or Letters of Administration, where no Will exists. .

In any event, the Deputy will not be officially removed from office until receipt of the relevant Court Order formally discharging the Deputyship. However, the security bond will remain in force for seven years after the death of the person you are deputy for unless there is a Court Order cancelling it.