Becoming a deputy through the Court of Protection

When someone loses the mental capacity to manage their own money and there is no power of attorney in place, the Court of Protection can appoint a deputy to make decisions for them. A Court of Protection order is a legal document that allows a person, the deputy, to make decisions on the financial or welfare matters of someone who cannot make those decisions themselves at the time they need to be made¹. The court only makes an order when the person lacks mental capacity and there is no lasting power of attorney in place².

Applying is not quick or free. The application fee is £432, paid by cheque to HM Courts and Tribunals Service with your forms³, and the final decision usually takes between 8 and 14 weeks from making your application, as long as no one objects⁴. In most cases the order then lasts for the whole of the person's lifetime⁵. This page explains how to apply, what it costs, what a deputy can and cannot do, and how the system differs in Scotland and Northern Ireland.

What a deputy is, and the two kinds of deputyship

A deputy is someone the Court of Protection appoints to make decisions for someone who cannot make decisions for themselves, which is what the law calls lacking mental capacity⁷. The court considers whether it is necessary for ongoing decisions to be made on the person's behalf, and whether the person applying is suitable to be appointed¹.

There are two types of deputyship: property and financial affairs, and personal welfare⁸. A property and financial affairs deputy handles money matters, such as paying bills, managing bank accounts and dealing with property. A personal welfare deputy makes decisions about healthcare and day to day welfare. The decisions covered relate to the property and affairs, and the healthcare and personal welfare, of adults who lack capacity, and occasionally of children⁹.

The person the deputy acts for is usually called the donor. The deputy can only act within the authority set out by the court, and has a duty to act in good faith and in the person's best interests¹. The court can appoint more than one deputy for the same person, and it decides how they must work together¹⁰.

Deputyship is the fallback, not the first choice. It exists for situations where the person has already lost capacity and no lasting power of attorney was made in time, which is why the process is described as lengthy and costly, and why the person cannot choose who their deputy will be¹. Setting up a power of attorney in advance, while the person still has capacity, avoids the need for it: see lasting powers of attorney for how that works.

How to apply to the Court of Protection

You apply to the Court of Protection, usually through GOV.UK. You, or a close friend or relative of the person, can make the application, and the court will consider whether it is necessary for ongoing decisions to be made on their behalf, and whether the applicant is suitable¹. The person applying does not have to be a professional: in practice it is usually a family member, and family members of someone who has lost mental capacity will have to apply to the Court of Protection to be appointed as their deputies¹¹.

The process runs in stages, and each stage has its own timescale:

As part of the application you must tell certain people that you are applying, typically three people close to the person. At least 14 days after you have told these people, the court will review your application⁵. Once the court has received the application, it should respond within 14 days, as long as there are no problems with the form and you have told everyone involved⁴. The final decision usually takes between 8 and 14 weeks from making your application, as long as no one objects⁴. The process can take a while because the court has to make sure it is safeguarding people who can no longer manage their own affairs¹⁰.

If the application is urgent or an emergency, you can apply for an emergency interim order, sometimes called an Urgent Interim Order, which allows decisions to be made before the full process completes⁶. This can matter where, for example, bills are going unpaid or a house sale is at risk.

The application fee is £432. You send a cheque for £432 made payable to "HM Courts and Tribunals Service" with your forms to the Court of Protection³. If the deputy is on a low income or receives certain benefits, they may not need to pay some or all of the fees⁵.

Fees and charges, and help on a low income

The headline cost of applying is the £432 application fee, paid by cheque to HM Courts and Tribunals Service with your forms³. Beyond that, the costs depend on the circumstances: the process is described by independent sources as both time-consuming and costly¹³, and there may be further court fees during the life of the deputyship, for example if the court needs to be asked to approve a specific decision.

Help with fees is available. If the deputy is on a low income or receives certain benefits, they may not need to pay some or all of the fees⁵. The wider help with fees scheme works on the same principle: you need to have a low income to get help, and depending on your income you either get a reduced fee or pay no fee at all¹⁴. If you receive benefits such as Income-based Jobseeker's Allowance, Income-related Employment and Support Allowance, Income Support, Universal Credit or Pension Credit (Guarantee Credit), you can get help with court fees¹⁴. If you do not receive benefits but are on a low income, you may not have to pay the fee, or may only have to pay part of it¹⁵.

Applications for help with fees are made using form EX160, which can be submitted before or after a hearing¹⁶. The dedicated page on deputyship fee exemptions sets out the detail, and free advice on whether you qualify is available from sources listed in free consumer advice.

It is worth knowing that fees in this area have a history of being set too high. The Office of the Public Guardian generated a surplus of £89m from overpayments of power of attorney registration fees between 1 April 2013 and 31 March 2017, with around 1.8 million people likely affected; the application fee had been set at £110 and was reduced from 1 April 2017 down to £82¹⁷. Refunds were later paid out to affected people.

What a deputy must and must not do

A deputy can only act within the authority set out by the court, and must act in good faith and in the person's best interests¹. The order itself sets out the deputy's powers, any restrictions, and any special instructions the court has attached⁹.

Subject to any restrictions or special instructions in the order, a deputy's permissions can include holding a debit card, obtaining information about the account holder's accounts, opening or closing accounts in the account holder's name, issuing cheques, making payments such as bills, withdrawing and depositing cash, retrieving items from safekeeping, applying for ISAs, accessing online and mobile banking, accessing phone banking, holding a cheque or pay-in book, and signing a mortgage loan agreement⁹.

The prohibitions are just as clear. In most cases, the deputy must not put the person's money or property in their own name, give away the person's money, make or change a will, or claim unnecessary expenses⁵. A deputy cannot change an existing will or create a new one for the person they are supporting without asking the Court of Protection¹⁸. A deputy must never mix their own money with the donor's money, and cannot use the donor's money to pay for expensive gifts for other people².

There is also an ongoing duty of accountability. The deputy must send an annual report to the Office of the Public Guardian, including a record of money in and out of the person's accounts that year⁵, and the Office of the Public Guardian may ask to see proof of any money spent from the donor's accounts in that annual report². Keeping receipts and statements from day one makes this far easier.

Where there is more than one deputy, the court decides how they must act. Deputies may have to act "jointly", meaning all decisions must be made together, or "jointly and severally", meaning they can act together or independently⁵. Jointly means all deputies need to be present to carry out actions; jointly and severally means deputies can act independently or together⁶.

How long a deputyship order lasts

The court decides how long the order will last, and in most cases it will usually last for the whole of the donor's lifetime⁵. A Court of Protection order only lasts as long as the donor is alive⁶.

There are ways an order can end earlier. If the donor can prove they have regained mental capacity, and the court agrees, the court will end the order; the court will want to see evidence that the donor has mental capacity². If a new deputy needs to be appointed, the court will revoke the original order and issue a new one, rather than simply adding a name to the existing document².

Because the order lasts for life in most cases, the choice of deputy matters. The deputy must be over 18⁶, and the court will have assessed their suitability at the point of appointment¹. If a deputy dies, resigns or can no longer act, the revocation and reissue process applies, which takes time, so it is worth the court appointing a replacement deputy where appropriate.

Using a deputyship order with banks and building societies

Once the court has issued the order, the deputy must register it with each bank or building society before managing the person's accounts there⁵. Registration is per provider: registering with one bank does not give access to accounts held elsewhere.

What the order should look like matters. The Court of Protection Order should be sealed or bear the blue office copy stamp¹⁹. A plain photocopy without the seal or stamp may be refused, so check with the provider what it needs before sending documents. Some providers also ask for certified copies of identity documents, covered in certified copies.

Once registered, access depends on the provider's own systems. At Nationwide, for example, a deputy can access the donor's accounts in branch or at a cash machine, and in some cases online using the internet bank; the provider may be able to offer a card for a donor's account so withdrawals can be made at a cash machine, but it cannot give access to anyone else's accounts using its app yet². A deputy can make payments and transfers in branch, and manage regular payments like standing orders². Online access at Nationwide is only available where the deputy has no restrictions set out by the court, acts jointly and severally with any other deputies, is personally named as a deputy in the order, has their own Nationwide account, and is not managing a joint account for the donor².

Guidance co-authored by the Office of the Public Guardian and British banking bodies sets out how deputies and attorneys should deal with banks²⁰. One point it makes is that becoming a DWP appointee only allows you to manage the other person's benefit payments; if you want to manage other finances, you need to apply to the Court of Protection to become a deputy²⁰. The different ways someone can help with another person's money, from a third party withdrawal mandate to a full deputyship, are compared in third-party mandates, and the steps for adding a deputy to an existing account are in adding a deputy.

Deputies investing the person's money should follow the official guidance on investing for someone as their attorney or deputy, which applies to deputies appointed by the Court of Protection to manage the property and affairs of someone who lacks mental capacity²¹.

A deputy or a lasting power of attorney: what differs

The core difference is who chooses and when. A lasting power of attorney is made by the person themselves while they still have capacity, and they choose their own attorney. A deputy is appointed by the Court of Protection after the person has lost capacity, and the person cannot choose who their deputy will be¹. The Court of Protection only becomes involved when someone loses capacity without a valid lasting or enduring power of attorney in place¹.

The practical differences follow from that:

The law treats the two roles as equivalents in many contexts: legislation defines a representative as including a person granted an enduring or lasting power of attorney, a deputy appointed by the court under the Mental Capacity Act 2005, and a guardian under the Guardianship (Missing Persons) Act 2017²². Banks generally handle registered attorneys and registered deputies through similar processes²⁰.

The clear message from independent advice is to plan ahead. Registering a lasting power of attorney takes time in itself: the Office of the Public Guardian has said people should allow up to 20 weeks for a power of attorney to be registered¹¹. But that is a simpler and cheaper route than a court application after capacity has been lost. The comparison is set out in more detail in lasting power of attorney or deputyship.

Scotland and Northern Ireland: guardianship and controllership

The Court of Protection covers England and Wales only². The other UK nations have their own systems, with their own names for the role.

In Scotland, the Sheriff can make a guardianship order²³. The equivalent of a deputy is a guardian, and in some contexts the older terms curator bonis or tutor are used: under the National Savings Regulations 2015, a reference to a deputy in relation to a person who lacks capacity must be construed as a reference to a curator bonis, guardian or tutor²⁴. Legislation elsewhere refers to a judicial factor or guardian under the Adults with Incapacity (Scotland) Act 2000²⁵.

In Northern Ireland, the High Court can make a controllership order²³. The Office for Care and Protection may appoint a relative or close friend as a controller to manage someone's property and financial affairs, with supervision from the Office of Care and Protection⁸. The terminology has changed over time: the deputy was previously known as a receiver, in Northern Ireland the role is called a controller, and in Scotland a guardian is granted a guardianship order¹⁹.

If the person's money is spread across more than one nation, the position can be more complicated, because an English deputyship order does not automatically carry the same weight in Scotland or Northern Ireland. Powers of attorney also differ by nation, covered in powers of attorney in Scotland and power of attorney in Northern Ireland.

Complaints and concerns about a deputy

If you have concerns about the actions of a deputy, you can contact the Office of the Public Guardian support line⁶. The Office of the Public Guardian has a responsibility to investigate allegations of mistreatment or fraud, and can report concerns to the police or social services if necessary²⁶. This applies whether the concern is about a deputy appointed by the Court of Protection or an attorney acting under a registered power of attorney.

Where a deputy's misconduct involves a bank account, the Financial Ombudsman Service can also look at complaints involving powers of attorney, and in England and Wales it points people to the Court of Protection, which can appoint a deputy²⁷. A complaint to a bank about how it has handled a deputy's instructions follows the normal complaints route, set out in writing a complaint and, if the firm does not reply, what to do if a company hasn't replied.

For the person applying to be a deputy, free help is available at several points: the application process itself is designed to be usable without a lawyer, help with fees is available on a low income¹⁴, and free advice on the process is listed in free consumer advice.