It is a common assumption that next of kin will be automatically allowed to manage the affairs of their loved ones in the event that they are no longer able to do so themselves, for example, as a result of accident, illness or infirmity.
However, where a close relative loses the mental capacity to make their own decisions, and they have not executed a Lasting Power of Attorney, you will need to apply to the Court of Protection for a Deputyship Order to enable you to make important decisions on their behalf about their property, finances or welfare.
Who can apply for a Deputyship Order?
Typically, a deputy will be a family member or a Solicitor. In some cases two or more deputies are appointed, whereby they are authorised to act jointly on all decisions, or jointly and independently.
However, the court has a wide discretion as to whom it appoints as a deputy and, more importantly, no one has the automatic right to be appointed, not even a spouse or civil partner.
The Court of Protection will consider the application for the Deputyship Order based on all the evidence before it, including any objections raised.
How do Deputyship Order disputes arise?
Disputes can often arise in an application for a Deputyship Order where another relative disagrees with the proposed appointment, typically where there are concerns about the potential conduct of that applicant if appointed as a deputy.
There are a number of issues that can commonly arise, bringing into question either an applicant’s ability to act in the best interests of the individual lacking capacity, or their intention to do so.
In particular, if an applicant is not physically or mentally equipped to take on this responsibility, or where their intentions are not necessarily sound and there is reason to believe they cannot be trusted, this may give rise to a dispute.
How are Deputyship Order disputes decided?
Where an application is made for a Deputyship Order, there will be opportunity given for objections to be raised and for evidence to be filed in support. In these circumstances the court will usually list the matter for a contested hearing, enabling all those concerned to make any representations.
When considering an application for a Deputyship Order, the court will have regard to a number of factors, including the applicant’s own health and capabilities, as well as their availability to act on behalf of the individual, for example, whether they reside locally and the extent of any other responsibilities.
The court can also take into account the past conduct of the applicant, for example, where there is a criminal history of offences involving dishonesty, or where the applicant has a poor record of dealing with their own finances. This could include where the applicant has county court judgments against their name, or has at some point been made bankrupt.
Having heard the evidence, the court will weigh up all the factors, making findings of fact as to what is more likely than not in relation to any allegations of misconduct, or questionable motive, that cannot otherwise be proven as a matter of public record.
Needless to say, any evidence of a conflict of interest or lack of impartiality, for example, where the applicant is owed money by the individual who lacks capacity, will almost certainly jeopardise their appointment as a deputy.
The court will make an appointment, or more than one appointment, based on the suitability and availability of applicants(s). In broad terms, and before granting an order, the court must be satisfied that any given applicant will only act in the best interests of the individual in question.
In circumstances where nobody suitable is available or willing to act as a deputy, the Court of Protection can appoint a professional to act instead.