Why do we need a deputyship order for property and affairs?
This situation occurs most frequently when social services or medical personnel determine that a person with dementia or another condition requires a residential or nursing home placement and that their care must be paid for. The family is then expected to help resolve the financial problems.
Ideally, the individual in need of care can appoint a trusted representative through a durable power of attorney. However, if they lack the capacity to do so, family or associates can apply to the Court of Protection for Deputyship, which grants broadly similar powers as an LPA.
If a property in their sole name needs to be sold, the court can request specific authority in the deputyship order so that the sale can occur. The Court will only grant this authority if substantial proof is presented. If you are uncertain when you submit the application or submit the incorrect paperwork, the court may issue an order preventing the sale of the property. We can advise you on the steps necessary to prevent this from occurring.
Why is a separate order required to sell the jointly held property?
When a property is jointly owned, it is sometimes necessary to file a second application with the court, resulting in additional documentation and a second court fee. This is what is known as a “Trustee Act Order” application.
Briefly, when a property is owned jointly (either as joint tenants or tenants in common), each owner functions as a land trustee for themselves and all other owners. If one or more property trustees lack capacity, they must be removed and substituted by a trustee with capacity, according to the law. If a power of attorney has not been created or contains incorrect language, it may be necessary to petition the court to handle removal and replacement.
In some circumstances, the Court of Protection must appoint two new trustees. This could be the case if one owner of a jointly held property has passed away and the other has lost the capacity to handle the transaction and has not executed a power of attorney. If the joint proprietors have made Lasting Powers of Attorney (or the old-style Enduring Powers of Attorney), a Trustee Act application may not be required; however, your attorney will need to review the language of the powers of attorney before advising you.
Should I also file for a deputyship order for health and welfare?
Sometimes, clients are advised to file for deputyship for health and welfare concurrently with deputyship for property and affairs. This is because it is common for individuals to create both financial and welfare powers of attorney simultaneously. This is not recommended, however, when it comes to deputyships.
In the majority of instances, the Court is unlikely to grant a request for a health and welfare deputyship. Health and welfare deputyship decrees are issued annually at a much lower rate than property and affairs deputyships. This is for good reason: a health and welfare deputyship should not be required 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, presuming there is no disagreement.
To submit a health and welfare application, you would need the court’s permission (permission is typically not required for property and financial affairs cases). The court would then consider the application’s justification, the benefit to the applicant, and the possibility of achieving that benefit in a less restrictive manner.
The MCA stipulates that a one-time court decision is to be preferred over the appointment of a deputy. If your arguments for authorising a welfare deputyship based on the child’s best interests are ambiguous, the Court will likely deny your request, sending you 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 individual who lacks capacity (this is different from the general rule in financial cases). When cases involving health and welfare are contentious, they can become extremely expensive, distressing, and time-consuming for all parties involved, as well as a significant drain on public resources.
Even if they do not hold a deputyship or LPA, professionals involved in a case where a person lacks capacity to make an LPA may consult with anyone engaged in providing for or interested in that person’s welfare. Frequently, clients report that a social worker or care provider informed them that they needed a health and welfare LPA or deputyship order in order to have a say in the care or treatment regime, or even where their relative should reside. This is incorrect and may result in court applications that are unnecessary. Whenever in doubt, please consult a lawyer.
If you are a family member or financial delegate experiencing difficulties with public authorities or care providers regarding health and welfare matters, you may have a better option within the best interests framework than filing a court petition to have your say. In the event that a dispute cannot be resolved, the Court could be petitioned for a one-time personal welfare decision or directions, but in the majority of cases, this is not necessary.
If you are unsure of your options or the court’s requirements, you are strongly encouraged to seek legal counsel before filing a court application. We are available to assist you with all Court of Protection and best interests matters, whether you want us to evaluate whether an application is prudent, complete the application on your behalf, or provide counsel at a later stage of proceedings.
