Deputyships and Lasting Powers of Attorney

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This article on Deputyship is the first in a series of legal articles aimed at families with children who have complex medical needs.

For many parent carers, their parental responsibilities will continue beyond childhood and into adulthood. Typically, it is when your child turns 18 that you no longer have parental responsibility; as they are deemed to be an adult and responsible for their own decisions. However, people with complex needs may not always be able to make their own decisions, so it is important as a parent to understand the options available to you and the right legal path, to ensure that you can continue to support your child effectively.

This article is here to provide you with some helpful advice if your child lacks (or is likely to lack at 18) the capacity to make their own decisions in relation to either property and financial affairs, or health and welfare matters. If possible, it is important to start preparing for the transition a few years before a child turns 18.

What is capacity?

In general, a person at 18 will be responsible for their own decisions, without interference from anyone else; they are considered to have the ‘capacity’ to do so. However, sometimes due to reasons such as illness, disability, or brain injury, a person does not have, or no longer has, the capacity to make decisions. They will either need support to make decisions or have decisions made for them.

In order to make sure people’s rights are being upheld, a capacity assessment should be considered when a decision needs to be made, for example, deciding whether to have an elective surgery. 

Because someone lacks capacity to make decisions in one aspect of their life, it doesn’t automatically mean that they lack capacity in all areas of their life. Capacity needs to be assessed for each decision separately.

Capacity is also time-specific. Someone may lack the capacity to make a decision initially but gain the capacity to do so in the future. If, for example, their condition changes.

A person’s capacity needs to be assessed by an appropriate assessor, such as a medical practitioner, or a social care professional. Once a decision has been made, it will need to be kept under review. A new assessment may be needed at a future date and when new decisions need to be made.

You can read the Mental Capacity Act guidance here.

Usual areas for decision-making are property and financial affairs and health and welfare matters which are wide-ranging and can include: 

• Testamentary capacity – whether or not someone can make their own will 
• Capacity to Marry or engage in sexual relationships 
• Capacity to conduct litigation – the process of taking someone to court
• Capacity to use social media 

It can be frustrating having to provide numerous pieces of evidence and have multiple assessments regarding your child’s capacity, particularly when it is believed they will permanently lack capacity. But, it is vital these steps are taken, and capacity is kept under review, to avoid removing a person’s freedom, rights, and autonomy.

What is the test for capacity?

The test for capacity involves taking into account 5 guiding principles under the Mental Capacity Act 2005 (MCA).

The MCA applies to everyone over the age of 16 years old and encourages involvement in the decision-making process, even if they are believed to lack capacity.

Examples of adjustments that can be made to optimise someone’s ability to take part in their assessment are:

• Communication aids, for example: talking mats, tablets, interpreters, pictorial aids, and storyboards. 
• Date and time of the meeting – some people may be more alert/communicative at certain times of the day or certain days of the week. 
• Where the meeting is held, for example, in a place where the person feels safe and is not distracted. 
• Who attends the meeting – making sure familiar and trusted people are invited to attend (although they may not be able to contribute to the meeting).

The person can also be assisted in preparing for the meeting in advance, so they know what to expect. For example, a speech and language therapist can do some work on the terms ‘more or less’, or ask some questions that will be raised in the assessment to ascertain consistent answers. 

Click on the yellow box to read the 5 guiding principles:

Assessors also need to answer the following questions. Click on the yellow box to see the questions:

Once the capacity assessment is completed, a person will either be found to have capacity or lack capacity:

Lacks capacity – If a person is found to lack capacity, then consideration should be had on whether a Deputy should be appointed through the Court of Protection.

Has capacity – If a person is found to have capacity, they can consider a Lasting Power of Attorney (LPA) when they reach the age of 18.

Irwin Mitchell’s short video below give a brilliant introduction to the Mental Capacity Act and answers key, frequently asked questions.

The Court of Protection

This is a Court that exists to make decisions on behalf of people who lack the capacity to make certain decisions themselves. The Court of Protection deals with matters relating to:

• Property and Financial Affairs (finances, gifts, property)
• Health and Welfare (medical treatment, housing, care)

The Court of Protection has the power to appoint a Deputy for either of the above categories. The Deputy can then make decisions on behalf of the person who lacks capacity. The Court will provide an Order which sets out what a Deputy can and cannot do.

The Court of Protection also has the power to make one-off decisions and can be used to access a Child Trust Fund account on behalf of a person when they reach the age of 18.

An application for the appointment of a Deputy may be considered without a hearing unless it is contested in any way. However, it can take up to 6 months to get a financial Order through. Health and Welfare matters, which aren’t urgent can take up to 12 months to come through.

A new online process is helping speed up Orders from the Court of Protection. You can also submit an urgent application by completing a COP9 form along with the application to explain what is needed urgently.

The timescales are not a reflection of the complexity of these applications but have to do with the limited resources of the HM Courts and Tribunals Service (HMCTS).

Who can act as a Deputy?

A family member or friend can be appointed as a Deputy. However, if a substantial amount of money is involved, the Court of Protection will likely insist on a Professional Deputy being appointed.

A Deputy can be appointed on their own (solely) or with another person. If appointed with another they will either act jointly, or jointly and severally. If Deputies act jointly, all decisions must be made together. If acting jointly and severally, smaller decisions can be made by a Deputy on their own, but bigger decisions should be made jointly.

All Deputies need to be over the age of 18 and be of sound mind. It is unlikely that you will be able to act as Deputy if you have criminal convictions, have been made bankrupt, or have any county court judgments in your name.

If you become a Deputy, you need to confirm that you will act in accordance with the MCA and in the best interests of the person you are acting as Deputy for. You will need to agree to share personal information within a Deputy Declaration (a statement outlining your personal circumstances, responsibilities, and duties), for example, details about your finances.

You are required to keep details of all income and expenditures, along with receipts. You will also need to complete a Deputy Report every year, which requires information on any decisions made, who has been involved in the decision making and details of all income, expenditure and assets.

What happens if I don’t appoint a deputy?

Once a child has reached 18, it is often thought that a spouse or parents continue to have authority to manage a person’s funds or make decisions on their behalf, but this is incorrect.

If a person who is 18 or over lacks capacity, only an Attorney or a Deputy (or Appointee for benefits) has the authority to manage the person’s finances or make decisions on their behalf.

In relation to property and financial affairs, organisations are becoming more aware of the role of a Deputy and will not usually allow anyone else to deal with elements of property and finances such as bank accounts without a Deputy or an Attorney in place. If there isn’t a Deputy or an Attorney, it can lead to bank accounts being frozen and bills not being paid.

For health and welfare matters, professionals involved may look to make decisions through a best-interest meeting, where the views of family members and any relevant agencies working with the person will be considered. However, if there is a disagreement, only a Deputy or an Attorney will have the authority to make any decisions.

A best interest decision-making process should involve those close to the person concerned, and consider their views. The MCA code of practice offers guidance on who should be consulted particularly in relation to end-of-life or serious medical treatment decisions; this is also broadly defined as anyone with an interest in the person’s welfare.

Often an Independent Mental Capacity Advocate (IMCA) can help represent the person concerned. If there is an unresolved disagreement, an urgent application to the Court of Protection will be required and the Court will make a decision.

Does my child need a deputy at 18?

The first question to ask is whether a person is likely to lack capacity at the age of 18?

If they are, you then need to consider whether they have any funds that require management now or in the future?

Where the young person is only in receipt of welfare benefits, then a Deputy may not be required – please see the section on ‘What if my child is only receiving benefits?’ for further information on this.

Where there are substantial funds or property to consider, then it is advised you make an application for a Deputy.

It is usually at 18 that you may start to face some difficulties with health and welfare decisions. If you are facing some difficulties, it is best to obtain some legal advice as soon as possible to go through your options.

What if my child is only receiving benefits?

If a person lacks the capacity to manage their own affairs but only has benefits coming in, then you can apply to be their Appointee through the Department of Work and Pensions (DWP).

An Appointee can manage a person’s benefits and open an account to hold these funds. An Appointee has a duty to keep the DWP updated on any changes that could impact benefits, as well as to spend benefits in the best interests of the person they belong to.

An Appointee cannot manage any other bank accounts that a person may have.

What is Lasting Power of Attorney (LPA)?

An LPA can be entered into by someone who has capacity at the time they wish to implement the document. The person must be 18+ to put an LPA in place.

You can have one or both of the following:

• Health and Welfare LPA;
• Property and Affairs LPA

An LPA allows a person to appoint at least one person close to them to be their Attorney and to make decisions on their behalf.

Usually, these documents can only be relied upon once the person loses capacity. However, with the Property and Affairs LPA, the person making the LPA can give their Attorneys authority to act on their behalf prior to losing capacity (for example, if they are unable to get to the bank themselves, they can allow their Attorney to go on their behalf).

Both documents must be registered with the Office of the Public Guardian before they can be used.

Under a Health and Welfare LPA, the person can decide whether to allow their Attorney to be able to make decisions on their behalf regarding life-sustaining treatment.

What are the costs involved?

Deputyship

Fees for deputyship will vary depending on the circumstances of your case. The standard fees are:

• Application Fee for Deputy appointment and any subsequent applications = £408
• Office of the Public Guardian Supervision Fee = £320
• Premium for Security needed to be in place annually = varies depending on assets

However, some people may be entitled to a reduction or an exemption on fees. You can find further information on Deputyship fees and reductions here and there is guidance on applying for reductions here.

An application can be done by the person wishing to be the Deputy. All the documents are online and can be submitted either online, or by post.

If you would like a solicitor to draft the application for you, they would charge an hourly rate.

Lasting Power of Attorney (LPA)

These can be done online, which requires:

• The registration fee of £82 per LPA.
• A £41 repeat application fee.

As with a Deputyship, you may be entitled to a reduction or exemption in certain circumstances.

You can find further information on LPA fees and reductions here.

The Government have recently published a toolkit for parents and carers on making financial decisions for young people who lack capacity.

If you are unsure about any of the processes above, it is important to obtain some legal advice to support you through the next steps.

Citizen’s Advice can assist you in finding free legal clinics. Some law firms also offer pro-bono work (work without payment).

I live in England or Wales

The information in this article is relevant to residents in England and Wales.

I live in Scotland

There are some differences if you live in Scotland.

Regarding Powers of Attorney, there are some different forms that need to be completed.

Regarding Deputyships. Scotland has Guardianship Orders, which require a different process. You can find further information on these from the Office of the Public Guardian Scotland.

You can also email [email protected] for power of attorney enquiries, and [email protected] for Guardianship enquiries.

I live in Northern Ireland

There are several differences if you live in Northern Ireland.

We recommend that you contact the Office of Care and Protection, or a law firm in Northern Ireland for further information.

For further information, you can view the Irwin Mitchell Court of Protection Deputyship page here >>Court Of Protection Deputyship | Irwin Mitchell

The information in this article was correct at the time of publishing but may be subject to change

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