If someone is unable to demonstrate mental capacity to assign a Lasting Power of Attorney (LPA), and is unable to manage either their health and welfare or property and financial affairs, then an application can be made to the Court of Protection (COP) to assign a deputy to said role if appropriate.
The role of deputy
In the same way as an LPA, there are two types of deputyship that can be assigned. These are: property and finance, and personal welfare (similar to the LPA for health and welfare).
The law states that deputies must only act on decisions that fit the criteria of their title – they cannot go beyond their assigned role. If other decisions need to be made that are outside of the deputy’s remit (such as, for example, making a Will), then appropriate action should be taken. This means establishing whether the individual has mental capacity to make the specific decision, and if they are found lacking, to follow the standard process for Best Interest decision(s), and/or to go to the Court of Protection if required.
Whatever the case, for every decision to be made, professionals must consider whether the individual has capacity to make a decision with appropriate support. If they are required to act, then the Deputy must act in the individual’s Best Interest. In doing so, they should be able to justify the outcome, while also considering what the individual would have wanted, and taking into account all relevant views
Applying to the Court of Protection
As a statutory role, the role of deputy is monitored by the Office of the Public Guardian.
The government website provides clear direction on who can apply to become a deputy through the Court of Protection. The government also gives guidance on how this application should be made. In total, four or five documents are required, depending on the nature of the application:
- COP1 application form – with an additional copy included in the submission.
- COP3 mental capacity assessment – with Part B completed by a trained professional
- COP4 declaration form
- COP1A (property and affairs) and/or COP1B (personal welfare) – including supporting documents as required
Completing a COP3 Mental Capacity Assessment
As stated above, the COP3 mental capacity assessment must be completed by an appropriately trained and qualified professional. Mental capacity assessors, such as ourselves, are normally referred to through a solicitor who will supply a comprehensive letter of instruction, alongside appropriate supporting information such as medical reports on the individual’s diagnosis and presentation.
The information provided by the solicitor is absolutely vital as it provides a baseline for assessment and also ensures the assessor can ask full and meaningful questions of the individual. A clear and direct flow of information between solicitor and mental capacity assessor will ensure that deputyship application is both necessary and appropriate, and that the COP3 assessment is carried out to the highest standard.