17 March 2016

What is a COP Deputy

“Following on from the last article, if you are a Court of Protection Deputy – what does that mean and what can you do and what can you not do…?

If appointed as a Deputy for Property & Financial Affairs, the powers may include receiving income, such as benefit payments, pension payments and interest/dividends for and on behalf of the person lacking capacity. The Order may also authorise you to receive capital and to spend capital appropriately for the person lacking capacity. That may include selling a house etc. If the sale is to you or someone closely associated with you that would present a conflict of interest which would require a further application to the Court to allow for it, even if the sale is at open market value.

The issue of making lifetime gifts and changes to a Will can also arise; again, because of the issue of a potential conflict between the person who lacks mental capacity and the person receiving benefit whether now or on death means that a Court Application is required in both types of cases and notice of the application must be served on any person whose interests could be affected by the proposed change.

If appointed as a Deputy for Health & Welfare issues, the Order may authorise you to make decisions about the care or medical treatment that the person lacking capacity receives. Sometimes, there may be issues which arise from such an appointment, but these are less likely to occur than with Property and Financial Affairs Deputyships.

With any Deputyship, there can be significant administrative burdens which must be dealt with. Those include the applying for and paying a surety bond on an annual basis, and the filing of an annual Deputy’s report, running from the date of the Order to the first annual anniversary of the same, and then to each succeeding anniversary or, if sadly the death of the person for whom the order was made to that date.

Whilst the Court does offer some guidance, whatever guidance is received is not an adequate substitute for legal advice.

There are those who either have been granted an order appointing them as a Deputy (without the assistance of a solicitor), or for those who subsequent are dealing with matters themselves without ongoing advice from a solicitor; in either case, Deputies are well advised to take legal advice before taking any of the steps discussed above. There will be other instances not discussed here, in which taking prior legal advice will save Deputies travelling down an incorrect path.

If you need assistance with a Court of Protection Deputyship application, contact Edward Walter on ewalter@bussmurton.co.uk or 01892 502 320.

Edward Walter

Edward Walter
Partner