What if someone close to you has dementia but no power of attorney or a will? Unfortunately, many people fail to create Lasting Powers of Attorney and put off making a will until it’s too late. They assume that they don’t need one until later in life. Then they lose capacity and their loved ones are left to deal with the aftermath.

Fortunately there is an option. The option involves making applications to the Court of Protection (CoP) for a deputyship. So there is a lifeline. But it’s nowhere close to ideal and you really should get your affairs in order while you can in order to avoid your loved ones having to go down this path.

Be prepared…. This is one of the longest articles you will find on this site. I have tried to be as comprehensive as possible in my explanation of the processes involved, and a deputyship application is a big task.

What is a Deputyship?

We use deputyships when a person no longer has the capacity to make decisions for themselves and has never appointed attorneys to deal with their affairs.

Someone must apply to the Court of Protection (CoP) and they will appoint a deputy to make decisions on behalf of that person. 

If you still have capacity, then you can appoint your own attorneys by making a Lasting Power of Attorney (LPA). An LPA allows you to pick the person you would want to make decisions for you. You can read about LPAs here. There are significant similarities between a deputy and an attorney. 

There are 2 types of Deputyship. One for property and financial affairs and one for personal welfare. This is fairly similar to LPAs. What I am about to say is open to debate, but I am of the opinion that the property and financial affairs deputyship is really the only one to be concerned with. I would say that applying for a personal welfare one is a waste of money because healthcare professionals are able to make such decisions on personal welfare anyway.

Who can be a deputy?

Anyone can be appointed as a deputy, but it is typically a close family member or friend.  Sometimes it is someone with a professional skill set to deal with this. Sometimes it is a member of the local authority, which has been known to cause issues in the past. In any event, they need to be over 18 and have capacity themselves.

What Decisions can they make?

The decisions they make depend on which deputyship they have been appointed under. By and large, they are the same as the decisions that attorneys are able to make under LPAs, but the CoP are able to restrict their powers and will generally only give the powers that are absolutely necessary for the deputy to perform their duties efficiently.

What if they act out of line?

Deputies are monitored carefully by the CoP. They must rationalise all decisions they make, document them, and make yearly reports to the CoP. If they act out of line, then they are likely to be removed from their responsibility and may even face criminal prosecution for their actions.

Why you do not want a deputyship or statutory will

There are 2 main reasons why you do not want to be in a position where one of these applications is necessary.

Firstly, it is a lengthy, difficult and stressful process to apply to the CoP to get one. It takes months for them to respond to an application. In fact, at the time of writing this (November 2024) I have just received an order from the Court of Protection in regard to an application that was made last December!

Secondly, it is very expensive. It works out as anywhere between £1,000 and £3,000 per application. Now bear in mind that you may wish to apply for both types of deputyship and maybe a statutory will as well… all of a sudden you’re look at anything between £3,000 and £9,000!

Why is the application process a difficult process?

Because there are multiple stages to the application in comparison to an LPA where you simply fill out a form, sign it and send it in with teh relevant court fee. There is a lot more to a deputyship application that that:

1. Firstly, you must inform the individual that you believe has lost capacity that you are making the application. This must be done on the prescribed form and they must be given time to respond.
2. Secondly, you must inform at least 3 other people relevant to the individual that the application is being made.  You must then also give them time to respond too, should they wish to dispute this action. If they do not respond within a 14 days then it is deemed that they have no dispute. If there are not 3 people relevant to the individual, then a witness statement must accompany the application stating this. Preferably the witness statement should come from the professional you are using to make the application.
3. Thirdly, presuming no dispute has arisen, the individual needs to undergo a mental capacity assessment with a healthcare professional. In a Lasting Power of Attorney, an independent individual must sign the form to declare that the person making the application – the Donor – has the capacity to understand what they are doing. That person can be a legal or medical professional, or someone who has known the Donor personally for at least 2 years. In a deputyship application, someone must sign to say that the patient does NOT have the capacity to understanding what they are doing. As this results in effectively disregarding the opinion of the patient and infringing on their freedoms, the standard of the individual that makes this declaration is much higher than just a friend of 2 years. It must be done by a relevant medical practitioner. You could try to use the patient’s GP, but there is no guarantee that they will correctly complete the form that they need to if they don’t do it regularly enough to be proficient –  the application could be rejected on that basis, costing you more time a frustration. As such it is better to instruct a mental capacity assessor, and they cost quite a bit of money, ranging between £500 and £800, generally not including VAT.
4. Fourthly, once the report from the assessment has been received, it is time to make the application. The cost of the applications is currently £408 each. The application consists of a number of forms:
   • COP1 – The main application form.
   • COP1A, COP1B, COP1C – The supplenetary pages with supporting information. They are specific to each type of application and generally only one of them needs to be sent dependent on the application. As an example, COP1A would provide information about the assets and finances of the patient to accompany a property and affairs deputyship.
   • COP3 – This is the capacity assessment form. The first half would be filled in by the person making the application, while the second half is for the medical practitioner that has been instructed.
   • COP24 – This is the form that would contain witness statements. 
   • COP15PADep – This form is specific to a property and affairs deputyship. This is the form by which the applicant notifies the 3 people prior to the application. As such, there should be 3 copies of these that would be sent in the application
   • COP14 – This is the form used by the applicant to notify the 
5. Be prepared as there will then be a lengthy wait. Government departments are not renowned for their speed, in particular because of the way the economy has been for the last few years. As stated earlier in this article, you may need to wait for up to a year.
6. The CoP will eventually responded, and they will make either an order or a directions order.
   • If they make an order, it will probably require the applicant to serve notice to the patient and 3 people of notice that the application has been made and sealed by the CoP. This will be done using COP20A and COP20B forms. These would need to be completed and sent back to the CoP.
   • If they make a directions order, then further steps must be conducted before the court can make an order. This happens with statutory wills. It is typical for the court to appoint the Official Solicitor to act as a litigation friend for the patient and to order the applicant to serve on the Official Solicitor all the forms that they had filed with the court.

What makes the application so expensive?

The costs vary depending on a number of factors, but be assured that it is costly and complicated process. It involves going through court and obtaining ongoing permissions before making each decision. Deputyship applications should be considered only as a last resort. Some of the factors that will determine the cost of your application include legal consultation fees, court fees, medical assessments, and ongoing care costs.

• The initial application filing fee to the CoP is £408. This cost is per application.
• As stated above it is necessary for the individual to have a mental capacity assessment conducted and these range between £500 and £800 plus VAT.
• There is also the fee of the professional who helps you make the application. The statutory maximum that a professional can charge is £950 + VAT (£1140). Brooks Wills and Brooks Legal can make applications for deputyship and statutory wills and we charge £1,100. We do not charge VAT.

So, a best case scenario where the documentation is done through Brooks Wills and Brooks Legal, it will still cost in excess of £2,000 just to get the application sent.

• If the court decides that it needs more information and orders a hearing, then that hearing will cost you £494.
• If you are a new deputy then you will need to pay a £100 for an assessment on yourself.
• There is also an annual supervision fee payable to the CoP. If you are a new deputy then this will be £320 for the first year. It will continue at £320 for every year you act unless the court deems it not necessary and the total assets you are managing do not exceed £21,000, in which case it will reduce to £35.

If there is a need for a statutory will as well, then this will be another £1,100 for our fees, plus the fee for drafting the proposed will, and the application fee – provided the healthcare professional drafted their report for both applications and you don’t need to pay a second time.

What can I do to avoid this?

In simplest terms, make LPAs and write a will. It may seem like an unnecessary expense,  but it is very important in the long run. Brooks Wills and Brooks Legal offer a package for £1,000 providing 2 wills and 4 lasting powers of attorney for a couple. The price of the wills are subject to change dependent on the complexities of them. More information can be found here.

There is of course the registration fee for the LPAs from the Office of the Public Guardian at £82 each. This would be £328 altogether. But compare this to one application for deputyship and one statutory will, costing £816 just for the application fees. It’s a no brainer.

If you believe that you have a loved one that has lost capacity then give us a call. We can certainly help you.

If not, then we still recommend you get in contact and book a consultation for your LPAs today.