A deputy is someone appointed by the Court of Protection to deal with the property and financial affairs of a person who lacks the mental capacity to do so themselves, typically when the protected party does not have a Lasting Power of Attorney in place appointing an Attorney to act for them. Unfortunately, some applications are contested. Our article explores some of the grounds for which applications are contested. Our specialist team can help assist in both contested applications and contesting an application.
When you apply to the Court of Protection to have someone appointed on behalf of a person who is deemed to be vulnerable, it is worthwhile bearing in mind that that application could be objected to by other people.
The majority of deputyship applications are uncontested and not challenged by others, but some are objected to for various reasons, ranging from complex family dynamics and disagreements to disputes surrounding the vulnerable person's capacity. At such times, it is up to the judge to determine who should be appointed as deputy.
To avoid getting to this stage, it is advisable that all family members are informed about a pending deputyship application, giving all sides the ability to discuss their concerns and reduce the risk of someone objecting to the application once it reaches the Court.
It could also save the family money by avoiding the extra costs of the contested court hearing.
Objections to deputyship applications can be for a number of reasons, including:
A vulnerable person in this context is someone who has been confirmed as lacking mental capacity, in that they are unable to make decisions, under the Mental Capacity Act 2005.
The best way to determine if this is the case is for a Mental Capacity Assessment to be completed.
If you disagree with a person's determination that your loved one lacks capacity, you are strongly advised to obtain a professional's opinion (i.e., GP or Social Worker) and seek legal advice before proceeding to contest a deputyship application.
If you do not agree that the proposed deputy is a suitable person to be put forward as your loved one's deputy, either because of their character, financial standing, or other legitimate reasons that you believe impede their suitability, you may consider objecting to the application on these grounds.
A deputy has a duty to ensure gifts made on behalf of a vulnerable person are customary and likely to have continued to have been made had the vulnerable person not lost capacity.
Substantial gifts are unlikely to be approved by the Court of Protection, nor would gifts that result in the vulnerable person being denied access to their money. A loved one could apply to the Court requesting the deputy pay back the money and may even ask the Court to remove the deputy entirely.
Were this to be approved, the Court could decide to appoint a panel deputy, who as an independent professional would ensure the vulnerable person's interests were put first.
When someone has lost capacity, they may be unable to make a Will due to the lack of testamentary capacity.
In these instances, it may be deemed that a person would benefit from having a Will in place. The Court of Protection would approve what is called a Statutory Will.
A Statutory Will involves making a new Will and therefore nullifying the previous Will. It is likely that existing or potential beneficiaries would object to such an application.
Contesting a deputyship application is usually done at an emotionally draining time.
We have a specialist Court of Protection Team at Premier Solicitors who can take the stress out of what can be a daunting process.
Read more blog posts which Rachel has written for this website.
