How long will it take to get a deputyship order, and what is the procedure?

files Mitra Mann explains the process and timescales involved in the event of there being no lasting power of attorney.

A lasting power of attorney (LPA) ensures that someone will be able to make decisions on behalf the donor, at a time when the donor cannot themselves make those decisions.

But what happens if an LPA has not been made, and the donor loses capacity?

The importance of LPAs

There are two types of LPA – one for property and affairs, and one for health and welfare. Both can be made while the donor has the capacity to appoint attorney(s).

Once a property and affairs LPA has been registered with the Office of the Public Guardian (and provided there are no restrictions in the LPA), the attorney can start managing the donor’s affairs, including paying bills and managing their bank accounts.

The position is different for a health and welfare attorney, who can only make decisions after the donor has lost capacity. A health and welfare attorney can make decisions such as the donor’s diet, healthcare and place of residence.

What can be done if an LPA was not made and the donor loses capacity?

Property and affairs

If the donor has not created an LPA for property and affairs and loses capacity, an application can be made to the Court of Protection to appoint a deputy to manage the protected person’s finances.

The applicant can be a relative of the donor, a family friend, a person who has an interest in the protected person, or a professional person. The donor can no longer choose who they wish the Court to appoint, and the decision on who to appoint rests with the Court. 

The Court will ultimately appoint a deputy who they deem suitable, and any decision made by the Court has to be in the protected person’s best interests. The Court will consider several factors, such as:

  • the protected person’s past and present wishes and feelings
  • the beliefs and values that would be likely to influence the protected person’s decision if they had capacity
  • other factors the protected person would be likely to consider
  • the views of others involved in the protected person’s care 

A deputy for property and affairs, once appointed, will have similar powers to a property and affairs attorney, and the deputy’s powers will be set out in the deputyship order.

Health and welfare

If a donor has not created an LPA for health and welfare and loses capacity, as with property and affairs matters, an application can be made to the Court of Protection to appoint a deputy to manage the protected person’s health and welfare. 

However, it should be noted that the appointment of a deputy for personal welfare decisions will rarely be made. Such deputies will only be required and appointed in the most difficult cases. Decision makers for care and treatment do not require specific authority from the Court to make day-to-day decisions, as they are protected by section 5 of the Mental Capacity Act 2005. 

The deputyship application procedure for property and affairs

The applicant will be expected to have knowledge of the protected person’s finances, and submit an application that will include confirmation, from a professional, that the protected person lacks the capacity to make decisions regarding their property and affairs.

The applicant is required to complete several forms, and a court fee of £385 (currently) is payable on the application being submitted to the Court of Protection. A fee may also payable to the professional assessing the protected person’s capacity.

Once the application is issued, the applicant will be directed to serve a copy of the application on ‘respondents’ who are those that the applicant believes have an interest, and on other people to be notified as per the Court’s guidance. This is done to give them an opportunity to respond to the application. 

The expected timeframe of the deputyship order

If the Court does not receive any objections and is satisfied that appointing the proposed deputy is in the protected person’s best interests, a deputyship order is likely to be made within four months of the application being submitted. This is, of course, subject to the Court of Protection’s workload and resources. 

The Court of Protection generally has a recorded message which confirms the amount of days it takes them to process applications, and it is advisable to call the Court and listen to the message for further information.

If, however, objections are received, and the matter is listed for a hearing before a judge, the process will take much longer. This does not only mean a delay in obtaining a deputyship order, but a substantial increase in legal costs, depending on the number of parties involved and the objections raised.

If an application is contested, it could take six months to nine months, or even more, depending on the complexity of the case and the Court’s resources, before a deputyship order is made.

About the author

Mitra Mann is a senior associate at Wright Hassall. She specialises in inheritance disputes, mental capacity issues, disputes in court of protection proceedings, and disputes concerning the appointment or the conduct of a deputy or an attorney.