Who makes decisions for a person who’s lost mental capacity?

People are increasingly concerned about who would look after their financial affairs and make key decisions about their welfare if they were no longer able to make these decisions themselves.

Individuals may lack mental capacity for many different reasons. It may happen as a result of a serious brain injury or illness, because of severe learning difficulties or because of dementia.

Often people wrongly assume that their spouse, children or other close relatives would be able to take care of things for them in these situations.

However, if there is no valid lasting power of attorney or enduring power of attorney in place, nobody has legal authority to make decisions on behalf of another person until a deputy is appointed by the Court of Protection.

What is a deputy?

There are two types of deputy: property and financial affairs and personal welfare. You can apply to be one type of deputy or both. However, the Court of Protection will usually only appoint a deputy for personal welfare in very difficult cases, for example, where there is a history of disputes within the family.

Often deputies are close family or friends of the person who is no longer able to make their own decisions.

How can I apply to become a deputy?

In order to apply to become a deputy for someone, certain forms must be filled in and sent to the Court of Protection along with a fee and supporting evidence.

The court will look at the evidence and determine whether the person needs to have a deputy appointed for them. The person who is said to lack capacity, and other people who are close to them, must be notified and given a chance to raise any objections or concerns.

Once you are appointed deputy, you will receive a court order which says what you can and can’t do on behalf of the person who lacks capacity. The Office of the Public Guardian supervises deputies and can provide them with help and support.

Deputies must keep detailed records of the decisions they have made and are often required to submit annual reports and accounts to the Office of the Public Guardian to show how they are dealing with the person’s affairs.

If you would like legal advice in relation to preparing an application for deputyship please contact Laura Brereton on 01772 258321