The legal principles in relation to appointment of someone referred to as “Deputy” in Poland is long established and can be found in the Civil Code 1964. In Poland, a family member in the “straight line” (i.e. ascendants and descendants), husband or wife, or statutory representatives may make an application to the Court of Protection Division of the District Court on behalf of a person who is thought to lack mental capacity to manage their property and affairs. There are two types of orders that Polish Judges can make on such an application:
1. An order that the person to whom the application relates partially lacks capacity; or
2. An order that the person to whom the application relates fully lacks capacity.
Whilst a curator (kurator) is appointed to act on behalf of a person who partially lack capacity, a deputy (opiekun) is appointment to act on behalf of a person who fully lacks capacity. Many of my Polish clients ask me how to appoint a Deputy in England and Wales to act on behalf of a person who lacks mental capacity and I am pleased to say that the process is very similar. In England and Wales, the relevant Court with jurisdiction over the property and financial affairs of people who lack mental capacity (please note there is no distinction in the UK law between partially and fully lacking capacity) to manage decisions for themselves is the Court of Protection, created under the Mental Capacity Act 2005.
An application to be appointed as Deputy can be made by a person who is 18 years old or over. This is an important distinction to note. Whilst in Poland applicants are limited to close family members, spouses and statutory representatives, in the UK Deputies can not only be close relatives but also friends of the person who needs help making decisions or others who might also be suitable. The Court will usually consider suitability of the applicant, taking into account their demonstrated ability to make financial decision on someone else’s behalf.
An application to the Court is made on the from called COP1 and must be accompanied by relevant documents, including a capacity assessment carried out by an appropriate practitioner who has examined the capacity of the person to whom the application relates. The practitioner may be:
– A registered GP of the person to whom the application relates;
– Approved mental health professional;
– Social worker;
– Nurse; or
– Occupational therapist.
A fee is also payable to the Court of Protection which currently is £400. However, in certain circumstances it is possible to apply for and a obtain a fee remission.
The legal process starts when the application is issued by the Court and takes approximately three months from the date of issue. Once appointed, the Court will issue a Deputyship Order, conferring authority on the Deputy to take control of and deal with the property and affairs of the person lacking capacity.