FAQs
Our FAQs
A Deputy is a person who is appointed by the Court of Protection to make decisions for someone (P) who doesn’t have mental capacity to make that decision for themselves.
There are 2 types of Deputy: property and affairs or personal welfare.
A Deputy can be a lay person i.e.; family members or a professional i.e.; a solicitor.
An application needs to be made to the Court of Protection. The Court will require evidence that P lacks capacity to make the relevant decision themselves. That evidence is usually provided by a medical practitioner such as a GP, psychologist, or specialist capacity assessor.
The Office of the Public Guardian (OPG) is an agency of the Ministry of Justice. Their role includes supervising Deputies and Attorneys.
The Court of Protection can appoint a property and affairs Deputy for a child if there is evidence the child will likely lack capacity to manage their financial affairs when they are aged 18 years.
Yes, an application needs to be made to the Court of Protection explaining why a new Deputy is required. Where that is because of a breakdown in the relationship, the Court will want evidence as to any steps taken to address those issues. There is a helpful protocol prepared by the Professional Deputy Forum here https://www.deputiesforum.co.uk/network-news/new-protocol-when-changing-professional-deputies which outlines the steps your legal advisors should take if you are unhappy with your current Deputy.
A lasting power of attorney (LPA) is a legal document which allows someone you trust to make decisions on your behalf if you're no longer able to do so.
There are two types of lasting powers of attorney: one for health and welfare, and one for property and financial affairs.
If you become ill or injured then an LPA is very useful. A Lasting Power of Attorney can only be made if you have sufficient capacity and understanding to prepare one.
You can appoint a family member, a friend or relative or a professional Attorney. A professional attorney will charge a fee.
LPAs cannot be used unless they are registered at the Office of the Public Guardian. However it is not necessary to register your LPA when you prepare. You should be aware however that there can be a wait of around 10-12 weeks to register an LPA at the Office of the Public Guardian so if an unexpected event were to happen, you could not use your LPA until after that time.
Yes. Enduring Power of Attorney were made before 1 October 2007 but are still valid documents and can be used. Slightly different rules apply regarding registering an EPA. If a person is or is becoming incapable of managing their own affairs and prepared an EPA, it is the responsibility of the attorney to register the EPA at the Office of the Public Guardian. However, the EPA can be used before registration with the donor’s consent and if they have capacity.
A personal injury trust or a “PIT” is a document that can be set up if someone has had an injury and received compensation as a result by way of a settlement. It has the benefit of ringfencing a settlement against financial assessment for means-tested benefits and also provides a structured way in which to manage injury monies in a person’s best interests.
Whilst there is no time limit applicable to set up a PIT, in order to qualify for the benefits exemptions referred to above, the PIT must be set up within 52 weeks of the settlement funds being received.