Deputyships

Deputyships

Wills and Probate services

Deputyships

Your Guide to Deputyship

A Deputy is a person appointed by the Court of Protection to manage the property and financial affairs or personal welfare of someone who lacks the mental capacity to manage them themselves.

Who can apply to act as a Deputy?

A Deputy is usually a family member, a close friend or a professional. The Court of Protection will decide who to appoint as a Deputy.

The Process

An application must be made to the Court of Protection and an Order granted before someone can deal with the affairs of someone who does not have mental capacity.

A doctor must complete an assessment of capacity for the person who is thought not to have mental capacity.

Details of the proposed Deputy and the person who does not have mental capacity must be submitted to the Court of Protection, this includes details of their assets, their family members and the people who visit them.

Family members of the person who lacks mental capacity must be given notice of the application to the Court of Protection.

If the Court of Protection grant an Order appointing a Deputy the Order will set out the powers of the Deputy and the Deputy must not exceed those powers.

In some cases further permission may need to be sought from the court, for example before a large asset – such as a house – is sold.

Supervision and Termination of Deputyships

When a Deputyship Order is made the Office of the Public Guardian will allocate the Deputyship to a category of supervision. The Deputy’s reporting obligations will depend on the level of supervision allocated.

A Deputyship Order is terminated if the person lacking capacity died, regains capacity or if the Order is limited in time and expires.

A Deputy may retire from their position.

For more information please contact Bryony Wilmshurst, Solicitor in charge of Wills and Probate on 01376 326868 or bryony.wilmshurst@cunningtons.co.uk

Frequently Asked Questions

The following are common questions we get asked about Wills and Probate. If you cannot find the answer here, please contact us for an answer.

A Will is a legal document which sets out what you would like to happen to your assets in the event of your death, who you would like to administer your estate, who you would like to look after your children and your funeral wishes.

If you are over the age of 18, have assets or children a Will is the only way to ensure that your wishes will be carried out in the event of your death.

Joint Wills are very rare and problematic these days. It is more usual to have Mirror Wills which is where you each have a Will but on similar terms. It is important to bear in mind that with Mirror Wills once you have left your estate to your partner, your partner is then free to do whatever he or she wishes with your assets, they could leave what they have inherited from you to a new partner. For more information please see Asset Protection Trust [link to Asset Protection Trust page].

An Executor is a person who will administer your estate in accordance with the terms of your Will, they will complete relevant tax returns and apply for the Grant of Probate before collecting in the assets and distributing them to your beneficiaries.

An Executor can be anyone over the age of 18, it is important that you appoint not only someone that you trust but someone who is capable of handling the administration of your estate in what is likely to be an emotional and stressful time.

Before appointing an Executor you may wish to discuss the matter with the person or persons involved to ensure they are willing to be named as Executor in your Will, although this is not essential and as the Will is personal to you, you might not wish to disclose details to an Executor.

If you appoint someone other than your Solicitor and they refuse to carry out the duties after your death then problems could arise.

Yes, we can act as Executors for you. Professional Executors will charge for acting.

A Guardian is a person or people who will look after your children in the event of your death, they will be responsible for bringing up your children.

A Will should be reviewed whenever your personal or financial circumstances change significantly or if your beneficiaries’ circumstances change significantly.

We recommend that you review your Will at least every five years to ensure it still accords with your wishes and is still appropriate for your circumstances.

Upon receipt of your instructions we aim to send you a draft of your Will for your approval within 7 days.

If there are no unforeseen circumstances it is likely that your Will will be signed within a month of us receiving instructions from you.

We would strongly advise against drafting your own Will or downloading a pro-forma on line.

There is an increasing amount of litigation that arises from incorrectly drafted Wills, often Wills drafted by people who are not legally qualified do not do what the person drafting them thinks they do which can cause significant problems and delays in the event of your death.

Often, it ends up costing far more to rectify any errors than the cost of a Will professionally drafted.

We can store your original Will free of charge in our Strong Room.

We will only release it to you during your lifetime upon receipt of your identification, to your Attorney in the event of loss of mental capacity if you have authorised your Attorney to have access to your Will under your Lasting Power of Attorney or to your Executors on your death upon receipt of your original Death Certificate and the identification and authority of all your Executors.

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Further Information

Making Your Will

To get started on writing your will, please click here to download our Will form,  then print it out and complete it before sending it to us.

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November Free Wills

Cunningtons support the Will Aid charity every November by offering to help with free simple wills.

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Wills & Probate Partner

Meet Bryony Wilmshurst, Partner in charge of our Wills and Probate department.

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