Why do we need a deputyship order for property and affairs?
This scenario most commonly arises when someone with dementia or another condition is assessed by social services or medical staff as requiring a residential or nursing home placement, and their care needs to be paid for. The family are then expected to assist with sorting out the financial issues.
Ideally, the person who needs care can make a Lasting Power of Attorney to appoint someone they trust. However, if they have lost capacity to do so, family or friends can make an application to the Court of Protection for Deputyship, which gives broadly similar powers to those under a LPA.
If a property needs to be sold, and it is in their sole name, the Court can be asked for specific authority within the deputyship order so that the sale can take place. The Court will only give that authority if clear evidence is filed. If you are unsure when you make the application or file the wrong documents, the Court could make an order that prevents the sale of the property. We can advise you on what is needed to ensure that this does not happen.
Why do we need a separate order to sell the jointly held property?
Sometimes a second application must be made to Court where the property is held jointly, which means more paperwork and a second court fee to be paid. This is called a “Trustee Act Order” application.
In brief, when a property is owned in joint names (whether as joint tenants or tenants in common), each owner acts as a trustee of land for themselves and all the other owners. If one or more of the property trustees lacks capacity, then the law says they must be removed and replaced by a trustee with capacity. If a power of attorney has not been made or does not contain the correct wording, it may be necessary to ask the Court to deal with removal and replacement.
In some cases, two new trustees need to be appointed by the Court of Protection. This could be where one joint property owner has passed away, and the other has lost capacity to deal with the sale and hasn’t made a power of attorney. If the joint owners have made Lasting Powers of Attorney (or the old-style Enduring Powers of Attorney), then a Trustee Act application may not be needed, but your solicitor would have to check the wording in the powers of attorney to advise you on this.
Should I apply for a deputyship order for health & welfare at the same time?
Clients are sometimes told that they should apply for deputyship for health and welfare at the same time as deputyship for property and affairs. This is because it is common for people to make Lasting Powers of Attorney for finance and welfare at the same time. However, this is generally not advisable when it comes to deputyships.
In most cases, the Court is unlikely to approve an application for health and welfare deputyship. Considerably fewer health and welfare deputyship orders are made annually compared to property and affairs deputyships. And this is with good reason: a health and welfare deputyship should not be needed if the “best interests” spirit of the Mental Capacity Act 2005 (“the MCA”) is applied by those involved in the individual’s care and health and assuming there is no dispute.
You would need to ask the Court for permission to make a health and welfare application (permission is generally not required for property and financial affairs cases). Then the Court would look at the reasons for the application, the benefit to the person it relates to, and whether that benefit can be achieved in a less restrictive way.
The MCA sets out that a one-off decision of the Court is to be preferred to the appointment of a deputy. If best interests arguments for authorising a welfare deputyship are unclear, the Court will likely refuse permission, and you will be back to square one.
It is also worth bearing in mind that the Court would not usually allow the Applicant to claim their costs from the person who lacks capacity (this is different to the general rule in financial cases). When health and welfare cases are contentious, they can become very costly and stressful for those involved and require a considerable amount of public resources and time.
Professionals involved in a case where an individual lacks capacity to make an LPA are able to consult with anyone engaged in caring for or interested in that person’s welfare, even if they do not hold a deputyship or LPA. Often clients will say that they have been told by a social worker or care provider that they must have a health and welfare LPA or deputyship order to get a say in the care or treatment regime or even where their relative should live. This is incorrect and can result in unnecessary applications being made to the Court. If in doubt, please seek advice from a solicitor.
If you are a family member or attorney / financial deputy facing difficulties with public authorities or care providers regarding health and welfare matters, there may be a better option available to you within the best interests framework than launching into a Court application to have your say. If matters cannot be resolved, an application could still be made to the Court for a one-off personal welfare decision or directions, but in many cases, even this is not needed.
If you are unsure of your options or what is required by the Court, we urge you to take legal advice prior to making any court application. We are available to help and support you with any Court of Protection and best interests matters, whether you wish us to review whether an application is advisable, complete the application for you or advise at a later stage in proceedings.
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