Losing mental capacity means not being able to make a decision that needs to be made.
People can lose mental capacity for a variety of reasons. Common reasons include:
- The person has dementia.
- The person has had an accident and as a result has a severe brain injury or illness.
- The person has severe learning disabilities.
We will explain mental capacity in more detail on this site. However, briefly, it is important to note:
- Just because someone has dementia does not mean that they lack mental capacity.
- Just because a person is unable to make some decisions, does not mean that they are unable to make any decisions.
Even when a condition such as dementia progresses, the person can very often continue to make decisions about some areas of their life. If the Court grants you a Deputyship Order, you will need to allow the person to be involved in making decisions so far as they are still able to do so, only stepping in where you are actually needed.
Types of Court of Protection Deputy
There are two types of Deputy:
- Deputies who make decisions about the person’s finances and property
- Deputies who make decisions about the person’s health and welfare
The two types of Deputyship Order allow you to make different decisions for someone who has lost mental capacity.
If the person is struggling to make decisions regarding their finance and property, you will need a Property and Financial Affairs Deputyship Order.
If the person cannot make decisions about their personal welfare (such as how they are looked after), you might need a Personal Welfare Deputyship Order. However, the Court is usually more reluctant to make this type of order. It will only be made if:
- There is some sort of dispute as to how they should be cared for – for example, the family disagree about care, or there are continual disagreements with the Local Authority.
- It makes sense for someone to be appointed to make decisions about particular aspects of the person’s care where these decisions will come up repeatedly over time.
You don’t need a Deputyship Order to simply care for someone day-to-day as this is covered by Section 5 of the Mental Capacity Act.
Rather than making a Personal Welfare Deputyship Order, the Court may prefer to assist with certain decisions. This might arise if, for example, the family disagrees with a Local Authority decision as to some aspect of the person’s care. However as noted above, if ongoing disagreements occur or seem likely to occur, a Personal Welfare Deputyship Order will be necessary.
Who can be a Deputy?
Anyone aged 18 or over can apply, but this doesn’t mean anyone will be accepted as a Deputy by the Court. Typically, the Court will appoint a close relative or close friend of the person who needs help.
Finance and property Deputies also need to have the skills to be able to make financial decisions for the person who needs help.
There can be more than one Deputy and sometimes the Court prefers this. For example, if the person who wants to apply is very elderly, the Court will tend to favour appointing an additional person as joint deputy.
Where there is more than one deputy, the Court of Protection will decide how you can make decisions. You will either need to make decisions:
- Jointly – this means all the Deputies must agree on every decision; or
- Jointly and severally – this means the Deputies can make decisions on their own, or with the other Deputies.
The Court’s choice really depends on the circumstances.
Other types of Deputy
In some circumstances, it may be appropriate for the Court to appoint a Deputy who is neither a family member nor a close friend. This might be for example if there is nobody else suitable to fulfil the role of Deputy – or it might be because the person who needs help could benefit from having a professional Deputy.
Solicitors, accountants and Local Authority representatives can all be Court of Protection Deputies.
Alternatively, the Court has the option of appointing a ‘panel deputy’, chosen from a list of approved law firms and charities. Typically this will be if no other suitable person can be found.
Q: Is it too late to make a Lasting Power of Attorney instead?
We’re often asked at what point it’s ‘too late’ to make a Lasting Power of Attorney. Some people mistakenly assume that as soon as someone has received a diagnosis of dementia, they can no longer sign the Lasting Power of Attorney paperwork. That’s not necessarily the case. It depends whether or not the person has lost mental capacity. A diagnosis of dementia alone does not necessarily mean that someone has lost mental capacity.
Having mental capacity is about having the ability to make decisions for yourself. Capacity is always ‘decision specific’, so someone might struggle to make decisions over finances but still have the capacity to grant a Lasting Power of Attorney. Many people in the early stages of dementia are perfectly capable of making decisions, even if they do occasionally get confused or forget things.
If you think the person in question still has mental capacity despite their diagnosis, it is strongly advisable to obtain medical evidence of this (for example, a letter from the person’s GP). It is also advisable not to delay in making the Lasting Power of Attorney as the progression can worsen rapidly. If the person loses mental capacity before the document has been finalised, a Deputyship Order will be necessary and these are far more expensive to obtain.