LEGAL EAGLE: Making decisions for others

Many people leave it too late to complete a Lasting Power of Attourney
Many people leave it too late to complete a Lasting Power of Attourney

Sadly the number of people with dementia is steadily increasing. There are estimated to be around 900,000 people with dementia at the current time. If current trends continue this could reach two million people by 2050.

A person with dementia may reach a stage where they cannot make significant decisions for themselves. If they have completed a Lasting Power of Attorney then their chosen attorney can act. For many people the onset of dementia means that they have left things too late and there is no Lasting Power of Attorney in place.

If there is no power of attorney then someone needs to take on the role of decision maker by applying to the Court of Protection to be appointed “deputy”. There are two sides or strands to the Court of Protection- one deals with welfare matters such as medical treatment. The second deals with property and finances such as paying for care.

A deputy can only be appointed by the Court of Protection. It may be a relative, a friend a solicitor or even a local authority. Professional deputies can charge for their time but otherwise it is an unpaid role. The job of acting as deputy is often a difficult one. It is unpaid and unrewarded. It includes a high duty to safeguard a person’s finances, keep records and generally to act in a person’s best interests. There is a duty to report annually to the Public Guardian. You should not act as deputy unless you are confident you have the time and skills to do the job. You may be able to claim limited out of pocket expenses.

The application to the Court must be supported by medical evidence and can often take around 6 months. There is scope to make an emergency application in urgent cases for example concerning medical treatment or to prevent someone being moved from their home.

Once the Court order is made copies should be provided to the various banks the DWP and other relevant institutions. A deputy must act within the scope of the Court order and should seek guidance from the court if uncertain as to how to proceed. A common area of confusion is the power of a deputy to make gifts to themselves or others. Great caution should always be used in considering such gifts and professional advice should be sought. It may be necessary to seek a decision from the Court on the making of a large gift. There is usually no need for any parties to attend the Court personally unless there are matters of dispute to be decided.

At David Gray LLP we can help with all aspects of the Court of Protection including disputed matters and financial management.

l Cliff Veitch is a partner at David Gray Solicitors LLP. You can call for an appointment with Cliff or any member of the Court of Protection team on 0191 243 8160 or Chat Live 24/7 by visiting the website