Deputyships in more detail

Why might it be of interest?
Making a decision to become a deputy for either Property and Financial Affairs and / or Personal Welfare is a big decision and it’s helpful to have some understanding of why you might want to become a deputy and what is involved in the process.

You may not need a deputyship to manage your young person’s affairs and you should be aware that the Court of Protection is very reluctant to grant Personal Welfare deputyships. Their view is that these decisions should be made via a Best Interests process in most instances. The figures from a couple of years ago were 15,000+ property and financial affairs deputyships were granted and 400 personal welfare deputyships.

You may well hear professionals asking if you have a deputyship so it is important that you understand what it is and why you might have one – but also why you might not have one.

The government website has a lot of information: https://www.gov.uk/become-deputy

 

Becoming a person’s deputy is a serious and responsible undertaking.  It is not something to be undertaken lightly as there are ongoing duties and responsibilities on the deputy or deputies.  You can apply to become your young person’s deputy for all decisions or you can apply to the Court of Protection (CoP) for one-off decisions.

If your young person has capacity to give you their Lasting Power of Attorney then you should go down that route.  Deputyship is only for young people who do not have capacity to make their own decisions about financial matters or health.

You do not need a deputyship for a young person under 18 as you have parental responsibility until they turn 18.  When a young person turns 16 is it assumed that they will be involved in decisions about their future, if possible.

You must be 18 to be a deputy and of good character.

Do you need a deputyship?

This is the first question to consider before going ahead with an application because you may not need a deputyship.

Some examples of when you probably don’t need a deputyship:

• The young person only has income from benefits; they have no assets, investments or significant savings.  As their DWP Appointee you can manage everything relating to their benefits

• The young person has a joint bank account with you or another person.  If all their accounts, investment accounts, etc are in joint names the jointly named person can manage these affairs

You may need a one-off Court of Protection decision to close a sole named bank account down and move the money to a joint account; to access funds in a Child Trust Fund account; to access funds in other savings accounts; sign a tenancy agreement; as examples.

Some decisions can be made with a ‘best interests’ decision and some financial institutions may be willing to allow you access to a sole named account or Child Trust Fund with evidence to support it being appropriate.

2 types of deputyship:

• Personal Welfare
• Property and Financial Affairs

Personal Welfare is rarely granted as the court takes the view that next of kin should be involved in decision making; listened to; consulted by relevant professionals – eg doctor, consultants, social worker.  It will only be granted in exceptional circumstances, for example if there is a dispute about the course of action.

Property and Financial Affairs

The rest of this document is about property and finance deputyships.

If your young person only has benefits you can apply to be their DWP appointee which gives you authorisation to deal with all matters to do with their benefits – any benefit:

• Decision making
• Speaking to the DWP
• Acting on their behalf

When you might need a deputyship:

A generalised Property and Finance deputyship will cover most of what you would want to manage on behalf of your young person, eg

• Sole name accounts and investment accounts
• Signing a tenancy agreement – although this might be agreed via a best interests decision

But certain things are not covered and would require a separate specialised application, for example:

• Buying / selling property
• Certain types of investments

Completing the application

Read the government guidance here:  https://www.gov.uk/become-deputy/print

There are a number of forms that need to be completed and they all have to be sent to the CoP together.

CoP3:  assessment of capacity – which will need to be completed by a doctor, consultant, social worker, for example.  There is likely to be a charge.  You need to give your name on the form and why you need the deputyship.  The rest of the form is completed by the professional and if they agree that the person does not have capacity you can continue with the application.

CoP1:  the application form.  You need to decide how you are going to be a deputy – sole, joint or joint and severally.  The deputyship could fail if you opt for sole or joint as the parties all need to act together – if one can’t or won’t act then the deputyship fails.  If you choose joint and severally then deputies can act together or separately.

You need to notify at least 3 people of the application.  These will be people close to and involved with your young person – siblings, parents, close family friends.  There is a hierarchy: spouse/civil partner, children, parents, siblings, etc.  If you are notifying one sibling you should be notifying them all, likewise parents, unless a person has no interest and no involvement with the young person.

If you cannot name 3 people or are not notifying people who would usually be considered as people who should be notified you will have to say why.

This form has guidance notes included as part of the form.  Do read these through carefully before starting to complete the application.  Two copies of this form need to be sent to the CoP.

CoP1A:  further information relevant to the application.  You need to provide details of financial matters – bank accounts, assets, benefits, when their benefits were last reviewed, any debts; details of their income; whether they own property; etc.

This form has guidance notes included as part of the form.  Do read these through carefully before starting to complete the application.

CoP4:  deputy declaration – all about you and the other deputies.  Each deputy has to fill in their own form.  You have to agree to certain undertakings and answer questions about yourself.  This is to determine whether you are a suitable person to be a deputy.  You are asked questions about your current employment circumstances, financial position, whether you have ever been declared bankrupt, criminal record.  You must declare everything – if you don’t and it comes to light your application will fail.  If you have been declared bankrupt you almost certainly will not be considered as a deputy.

The forms are long with a lot of questions.  They do come with advice on how to complete them but do take advice from an experienced solicitor if you are at all unsure how to fill the forms in.  You can see examples of each form simply by googling them.

You can download and fill the forms in online but you will need to print them off for signatures and returning them to the CoP.

Once the application forms are completed

You send all the forms off along with the fee of £371 unless you are applying for a fee exemption or fee remission (see form CoP44A).  Make sure you keep copies of all the forms.  If you are making 2 applications – one for Property and Finance and one for Health and Welfare you have to pay for both applications.

The CoP will ‘issue’ the application – this is a stamped copy of your application and indicates it is being considered – and provide a letter with what to do next.

There will be further forms referenced that you use to notify the young person and the other interested parties of the application and that you complete to confirm that all parties have been notified.  There are also time limits to observe.

CoP14: to notify your young person

CoP15: the form to give notice to interested parties

CoP5:   the form they can use if they want to give their opinion, for or against

CoP20A: confirming you have told your young person

CoP20B: confirming you have told other people named in the application

Notifying (or ‘serving’):  within 14 days of the application being issued you must tell the person for whom you are apply for deputyship and at least 3 other people (listed in the application).  Seven days after notifying the person in question and interested parties you send the ‘certificates of service’ to the CoP to confirm that you have notified everyone, when and how.  This then leads to a waiting period when the person or the notified parties can make objections.

If you are unable to tell 3 interested parties you need to send in a witness statement, form CoP24.

Security Bond:  if there are no objections the next step is the security bond.  This is an insurance policy, payable annually.  The amount of the bond is set depending on who is applying to be a deputy and the value of the person’s assets.  For example, a closer relation is considered less risky than a more distant relation or family friend.  There may be nothing to pay if the value of your young person’s estate is low.

Completion:  once all this has been completed the deputyship can be granted.  This whole process takes about 6 months.  There are ongoing fees to the Office of the Public Guardian (OPG) but depending on the person’s income they may be exempt from paying the fees or be eligible for a fee remission.

If you need help filling in the forms the cost involved, plus any costs to the CoP or to the mental capacity assessor are reclaimable from the person’s assets.

Annual Accounts

You need to report to the OPG each year:

• How the client is cared for
• About decisions you have made
• How did you involve the person in the decision making
• Friends, family and professionals you’ve contacted on behalf of the client
• Financial information
  • All bank account statements
  • Starting and ending balance
  • All must balance
• Purchases you have made on your young person’s behalf
• Separate forms for each bank account
• Keep receipts

There is an annual cost which can be reduced if the young person’s income is below a certain level.

You may be told that you need your young person’s LPA or a deputyship by various organisations.  They may not always understand the difference or even why they are relevant.  Many solicitors’ websites do not indicate that a Health and Welfare deputyship is rarely granted and may leave you with the impression that it’s as easy to get as a Property and Finance deputyship but it is not – and the government information tells you this.

Please read ALL the guidance that comes with the various forms.  This document is not intended in any way to replace that guidance.