If a person does not have in place a Lasting Power of Attorney for property & financial affairs and/or health & welfare prior to becoming mentally incapacitated, there is a no default position in law: e.g. if Mrs A suffered a catastrophic brain injury which meant she could not make substantial financial decisions due to lack of mental capacity (e.g. deciding to sell her home to pay for care fees), no family member could automatically make those substantial financial decisions on her behalf: it would be necessary to apply to the Court of Protection for a deputyship order.

We can assist family members to make an application to the Court of Protection for a deputyship order in order for the suitable family member to be the incapacitated person's "deputy" and make decisions on their behalf. Separate applications would need to be made for property & financial affairs deputyships and health & welfare deputyships in the same way that you have separate Lasting Powers of Attorney.

Property & financial affairs deputyship orders are more common and are granted more often by the Court of Protection as often important health & welfare decisions can often be made on a "best interests basis " by family members in conjunction with health & social services.

Non-family members (e.g. close friends) can also seek to be appointed as the deputy for an incapacitated person as there may not be any suitable family members alive or willing or able to take on the role.

Most deputyship applications are decided by a Judge "on the papers" within weeks so there is no need to attend Court. In the minority of cases, an attended Court hearing might be necessary where, for example, another party (e.g. family member or the local authority) might object to the person applying for the deputyship order if, for example, they are considered by the other party to be unsuitable. The incapacitated person might object themselves to the application if they do not consider that they lack mental capacity.

We can also assist in applying to the Court of Protection for:

• A change of deputy (e.g. from one family member to another);
• Removal of a deputy if the existing deputy is no longer suitable for the role;
• Removal of a deputy if the once-incapacitated person regains capacity and can now make decisions for themselves;
• Making bespoke applications on behalf of the existing deputy for substantial gifts to be made from the incapacitated person's estate and/or statutory will.

This firm can also provide professional Court of Protection deputyship services for property & financial affairs: our Principal Solicitor is the Court of Protection-appointed deputy for a number of clients where there are no suitable family members alive or willing or able to take on the role. Our fees for our professional deputyship services are usually paid for from the incapacitated person's estate and subject to assessment by the Court.

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