Girlings Solicitors is one of the few solicitors in Kent to have a dedicated Court of Protection team. We are committed to upholding the principles of the Mental Capacity Act 2005.
Our team only offer sound legal advice based on years of experience but focus on pastoral care and support for both our clients and their families. We are available to listen, help and advise clients, their loved ones and friends at difficult times regarding the options available to them.
Solicitors for the Elderly (SFE) is a select and specialist national group of lawyers who support and make a difference to older and vulnerable people. Miss Lesley Rushton is a fully accredited member and our team as a whole is committed to supporting the interests of both elderly and vulnerable people with extensive experience in offering advice for long term care provision, on safeguarding, financial planning and other important issues.
In cases where a Lasting Power of Attorney is not in place, we are able to help you make an application to the Court of Protection, for you to be appointed as deputy. Alternatively we can apply to become the deputy specifically for Property & Finance, to deal with financial institutions and other matters to allow you to concentrate on your loved one’s care and welfare. We can also help with statutory Will applications if you need to make or change a Will on behalf of someone who cannot do it themselves.
If there is no Lasting Power of Attorney in place and a person no longer has mental capacity to make one, an application will usually be made to the Court of Protection requesting that a deputy is appointed. The Court will then appoint a deputy to take care of that person’s finances or health and welfare.
The Court of Protection is there to look after individuals who lack mental capacity to make decisions for themselves, regardless of their age.
The Court can give these supervisory powers to someone else if there is a need for decisions to be made on an ongoing basis. Those given these responsibilities by the Court of Protection are called deputies. Deputies are scrutinised by the Office of the Public Guardian (OPG) annually and they must abide by the principles of the Mental Capacity Act 2005
Girlings has offices in Ashford, Canterbury and Herne Bay. Our specialist team is qualified to provide the necessary legal advice whilst being sympathetic and understanding to clients.
Our Wills, Tax & Estates team is ranked in the Legal 500 for the fourth year running.
A Deputy is a person who is appointed by The Court of Protection under the Mental Capacity Act 2005 when a person does not have the mental capacity to make that specific decision for themselves and where they have not previously appointed somebody they can trust by putting a Lasting Power of Attorney in place.
The duties and responsibilities are the same when acting on behalf of somebody as their deputy or attorney under an Lasting Power of Attorney (LPA). Both powers only last for that person’s lifetime after which time the executor assumes responsibility for affairs under their Will, or the intestacy rules apply.
The difference is that an attorney is chosen by the person themselves and a deputy is appointed by the Court of Protection. Deputies and attorneys can be family members, close friends or professionals, such as solicitors, or even the Local Authority in specific circumstances.
A common misconception is that married or cohabiting couples do not need an LPA to deal with each others affairs. This is not the case. No-one knows the future and we strongly recommend that young or old set up an LPA to protect and enable the person they choose to manage their affairs in accordance with their wishes and views.
The cost of making a deputyship application to the Court of Protection should be funded by you. With regard to any on going costs, only professional deputies can charge for their time and even then the rates are fixed by the courts. Lay deputy’s cannot charge for their time but can reclaim expenses incurred whilst carrying out their duties, such as mileage to take the person to a medical appointment, attending official meetings, such as a care review or postage for example.
Before you can be appointed as a deputy, you have to sign a legal undertaking stating that you will adhere to the ethos of the Mental Capacity Act 2005 acting in a person's best interests at all times and that you understand the implications of the responsibilities you have agreed to take on. The Office of the Public Guardian (OPG) is appointed by the Court of Protection to supervise all deputies.
The OPG has very clear guidelines on a deputy’s role and responsibilities and are responsible for reporting back to the courts on any concerns they have regarding a deputy’s conduct or abuse of the power that they have been given.
Deputyship and Lasting Powers of Attorney are divided into two categories: Property & Finance and Health & Welfare:
Property & Finance is the most common of appointments, because people sadly can become very vulnerable and an easy target for abuse as they get older or become sick. This does not mean that the vulnerable adult has no say in what happens – they have to be consulted on every decision. A person’s capacity can vary at times enabling them to make some decisions, albeit you as the Deputy may consider it to be unwise. They may not understand complex financial matters but they may well be able to voice an opinion on the food they want to eat or clothes they want to buy for example.
If as the deputy you consider that the person does not have the capacity to make the decision, then it is your responsibility to consult with appropriate people, taking into account any advance decisions and known previous beliefs, before making a decision in their best interests.
Health & Welfare: The Court of Protection is often reluctant to appoint a deputy for general health and welfare matters, preferring the application to be specific such as authority regarding medical treatment or where a person lives.
