Deputyship or appointeeship – which is in P’s best interests?

If someone in your care or your loved one has lost capacity and is no longer able to make crucial financial decisions for themselves, you may wish to step in to protect their interests.

A person who has lost capacity is often referred to as “P” – so as to protect their identity within Court proceedings.

This article gives an overview of two possible options where P lacks the capacity to make decisions in respect of their finances – becoming a deputy or an appointee – and when each may be appropriate.

What is a deputyship?

The Court of Protection may appoint a person or an organisation to act as P’s deputy if P lacks mental capacity.
  
There are two types of deputyship, each with its own application process and legal duties. The exact scope of the role in each case will depend on the order made by the Court of Protection, but regardless of the particular responsibilities conferred, a deputy will always have a duty to act in P’s best interests.
  
The type of deputyship most commonly granted (and relevant to matters of P’s finances) is a Deputyship for Property and Financial Affairs. Deputies who are appointed to assist with P’s property and finances have wide-ranging management powers covering many aspects of P’s financial affairs, which may include buying and selling property, paying bills and managing their pension or savings.
 
The second form of deputyship is a Deputyship for Personal Welfare. This empowers the deputy to make medical and care decisions about P, and is typically only awarded in limited circumstances, such as where P needs ongoing care.

What is an appointeeship?

The role of an appointee is much narrower in scope than that of a deputy. An appointee’s duties are limited to claiming and managing P’s benefit entitlement, where P lacks the capacity to take care of their finances independently.
  
In addition, the appointee will typically receive P’s benefits and be responsible for using these funds to pay P’s utilities bills, rent etc.

An application to be an appointee is made through the Department of Work and Pensions and involves a visit to P, an interview with the proposed appointee, and completion of an application form. Unlike a deputyship, there is no requirement to go to court, which typically means that the appointment takes effect more quickly, and it is much less expensive to obtain an appointeeship.

Which application should be made?

Appointee

Where P’s only income comprises of statutory benefits, and they do not own significant capital assets, an application to be appointed as an appointee may be most appropriate.

To become an appointee, an application must be made to the Department of Work and Pensions, who will then conduct a brief interview.

Deputy

In circumstances where P has greater income or capital, for example property, significant savings or a pension, the more expansive powers of a Property and Financial Affairs Deputyship may instead be necessary. A deputy must be appointed by the Court of Protection and therefore an application to the Court of Protection is required.  

If P has no relatives or professional advisors (such as a solicitor or accountant) willing or able to take on the role of appointee or deputy, it may be necessary to approach the relevant Local Authority to fulfil this function. They will usually charge for this service, provided P has sufficient funds.  

Alternatively, where P needs a deputy and no relatives are available to carry out the role, the Court of Protection may appoint a panel deputy from a list of approved professional deputies compiled by the Office of the Public Guardian. However, if P does have very limited capital resources, then it is possible the Court of Protection may be reluctant to appoint a professional deputy with a view to avoiding unnecessarily depleting P’s limited assets. In such circumstances, the Court of Protection may be more inclined for a lay-person or the local authority to act as P’s deputy.

It is important to note, however, that the Court of Protection does not have the power to compel anyone to act as a deputy (whether for Property and Financial Affairs or for Personal Welfare). This is a role which must be undertaken voluntarily – however, the Court of Protection may express a view on the most appropriate party to act in this role.

If you or your organisation require support with a deputyship or appointee application (or advice in relation to an ongoing arrangement of this nature), then please do not hesitate to contact our estate, trust and will disputes team who frequently deal with applications to the Court of Protection on financial matters. 

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