Dementia, the Court of Protection & deputyships

When someone is diagnosed with dementia it can be an incredibly challenging time – not only for them but also their family and friends.

Approximately 1 in 11 people over the age of 65 have dementia in the UK, with case numbers expected to rise even further as the life expectancy of our population increases.

In light of Dementia Action Week, we’ve put together a small series of articles, providing an overview of how a dementia diagnosis can affect a person’s legal affairs and what we can do to help you plan for the future and protect your loved ones.

You can view the other two articles in this series here, with legal insight into mental capacity and lasting powers of attorney (LPAs). Below, we take a look at the Court of Protection and deputyships.

The Court of Protection & deputyship orders

If an individual with dementia loses capacity and does not have a LPA or an enduring power of attorney in place, the Court of Protection can make decisions about someone’s health, welfare, property and financial affairs. Decisions of the court will be made in the best interests of a person with a type of dementia and in a way that is least restrictive of their rights and freedoms.

Applications to the Court of Protection can be made by friends, family members, solicitors or the local authority on behalf of someone with dementia. The individual will need to have a mental capacity assessment carried out by a suitable medical practitioner or social worker before making the application. If the application relates to the persons health and welfare, you will need permission from the court to make it. Conversely, applications relating to the person’s property and financial affairs will generally not require the court’s permission.

The court can appoint whoever is applying as a deputy/deputies – those who are granted legal authority to make decisions for a person with dementia. This is usually in respect of financial matters. Unlike attorneys who can make decisions on a wide variety of matters, the court may restrict what decisions a deputy can make.

It usually takes approximately 6-12 months to have a deputy appointed, but urgent applications to the court can be made if the need arises. Like attorneys, you can appoint deputies to make health and welfare decisions for a person with dementia or decisions regarding their property and financial affairs, but they are usually only appointed in exceptional circumstances.

The Office of the Public Guardian will oversee the appointment of deputies and will send out a court visitor to attend them to ensure that they have all the support necessary. A deputy should keep all records – whether for financial matters or health and welfare decisions – so that they can easily account for the actions they take.

It is often easier to create an LPA as then you are certain that the person/s with authority to act on your behalf is someone that you have chosen. In a deputyship application, if there is dispute between the proposed deputy and family members, then the court will appoint a panel deputy of their choosing who will normally be a solicitor. With a deputyship, a deputy must also provide a report to the court on an annual basis. There will be annual costs for supervision and a surety bond.

For health and welfare applications, the Mental Capacity Act 2005 emphasises that a one-off decision of the court is preferable to the appointment of a deputy, whose powers should be limited in scope and duration as much as possible.

If an individual with dementia is elderly and does not have a health and welfare LPA, the court will be reluctant to involve itself in medical decisions. Instead, decisions will be made by the medical practitioners supporting them unless exceptional circumstances arise. It is therefore particularly important to have a health and welfare LPA in place to ensure that care and treatment decisions consider the individual’s wishes and decisions are made on behalf of an incapacitated person by somebody they trust.

An application to the Court of Protection may also be necessary if there are questions about whether an attorney is acting within their powers and whether an application needs to be made to the court for permission, such as living in a property that the donor (the person that made the LPA) owns or gifting, or if there is a dispute about the registration of a lasting power of attorney.

We take a clear, honest and empathetic approach to these matters and ensure that any applications are processed efficiently. It is important that an attorney or deputy understands their duties, thus legal advice should always be sought should there be any doubt.

During what can be a distressing time for those involved, you are bound to have a lot of questions. Our experienced and friendly team will be happy to help and support you through the process, so please don’t hestitate to contact us.

Our Legal 500-rated wills, trusts & probate team has the expertise to help you plan for the future and guide you through any difficult challenges that may arise, including those relating to the Court of Protection and deputyships.