A prominent feature in the media right now is the Conservatorship Order granted to pop star, Britney Spears’s father to manage her financial affairs and health and welfare which was granted to him following the US Court deeming her to not have physical or mental capacity to manage her own affairs.
The UK equivalent to a Conservatorship is a Deputyship Order which is applied for at the Court of Protection on behalf of someone who lacks mental capacity. This may include someone who suffers with an illness, learning difficulties or has had an accident.
There are two types of a Deputyship; One is to manage a person’s health, welfare, and medical treatment/care and the second is to manage a person’s financial affairs which can include their home and savings. Deputy’s appointed by the Court are accountable to report their decisions on an annual basis to the Office of the Public Guardian.
An appointment of a Deputy is similar to an Attorney appointed by a Lasting Power of Attorney, but the main difference is an Attorney is chosen and appointed by the person (referred to as the ‘Donor’) before he or she has lost capacity. In a Deputyship the Court will ultimately decide if the person applying to be a Deputy is suitable for the role.
The process to apply to become a Deputy can also take the Court up to 6 months to deal with the application whereas an Attorney can be registered within 8-12 weeks.
However, both types of appointment are governed by the rules in section 1 of the Mental Capacity Act 2005, where the key principles which an Attorney or a Deputy must adhere to are:
1) A person must be assumed to have capacity unless it is established that he lacks capacity.
2) A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
3) A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
5) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action
If you would like to discuss Lasting Powers of Attorney or need to discuss a Deputyship application on behalf of someone, please contact Kiren Rai, Wills & Probate Executive in our Private Client Department on 01926 356 034 or email kiren.rai@alsterskelley.com
Please call 01926 356041 to speak to one of the team to make an appointment with one of our Private Client lawyers at any of our six offices.
Kiren Rai
Kiren specialises in Private Client work with an emphasis on the administration of estates and preparing probate applications, for both testate and intestate matters.
01926 356000
kiren.rai@alsterskelley.com