Mental Capacity Act 2005

Updated: Feb 22

The Court of Protection and becoming a deputy for a person who lacks the capacity to make decisions.


When a person is deemed not to have the capacity to make their own decisions, it is possible to apply to become that person’s deputy and to make decisions on their behalf. There are two types of deputy:

  • Property and financial affairs

  • Personal welfare

You can apply to become just one or both types of deputy for the person that lacks capacity.


Applications to become a deputy are considered by the Court of Protection. They will take account of the relationship between the applicant and the person who lacks capacity; the reasons for the application; the potential benefit to the individual concerned and whether there is an alternative way of providing the same benefit (the least restrictive option).


Is it necessary to apply to become a deputy?

It is usually necessary to apply to become a deputy for a person who lacks capacity in order to deal with their financial affairs and property, including bank accounts and savings.


When a person is only in receipt of state benefits and an appointee is in place, it may not be necessary to appoint a deputy if the person does not have a bank account solely in their own name.


The Court will not usually appoint a deputy for welfare decisions as they expect decisions and issues to be resolved via the best interests’ process. Only where this has not been possible and in the most contentious cases will the Court become involved either to make a one-off decision or to appoint deputies.


Who can become a Deputy?

Deputies are over 18 years of age and usually family members or close friends of the person who lacks capacity. There may also be deputies that are paid to undertake this role and may include accountants, solicitors or social services, representatives.


Those applying to become a deputy of financial affairs and possessions must have the appropriate skills to manage such responsibilities.


A court may decide to appoint two or more deputies for the same person and state that they can make decisions independently of each other or that they must both agree to the decision being made.


Costs

An application to become a deputy incurs costs in terms of an application fee and possible court fees for current costs please see here for more information.


Annual supervisory costs will be charged according to the level of supervision required by the Office of the Public Guardian (OPG) or Court of Protection Visitors. These are classed as follows:

  • Type 1 - close supervision involving regular phone calls and meetings with OPG and visits from a Court of Protection Visitor.

  • Type 2A - for property and affairs deputies in the first year of being a deputy or who need extra support.

  • Type 2 - light supervision.

  • Type 3 - very occasional contact for property and affairs deputies who are managing assets below a certain threshold.

For current supervisory costs please see here.


There are circumstances that allow you to be exempt from the application costs. These inc