Sometimes a situation arises where a person loses mental capacity to manage their financial affairs, make decisions about their welfare, or perhaps both. Where there is a Power of Attorney in place for when this happens, the situation can be managed. Where there is not, it may be that a Deputy needs to be appointed. Berwins' Dan Snedden explains what the process involves.
It is far more common to have a Deputy for property and finance than for health and welfare. Of the 59,000 Deputyships currently active, X% are for property and finance. This is because the Court is reluctant to appoint health and welfare Deputies as there is a well-established best interests decision making process applicable in these situations which is normally sufficient.
A property and affairs Deputy may be needed so that they could manage bank accounts, investments, payment of household bills, care fees, maintenance and sale of property, and so forth. There is a wide variety of situations and reasons why a Deputyship may be appropriate.
A formal assessment of capacity will need to be obtained. This can be from a treating consultant, GP, social worker or other suitably qualified professional. It should provide an opinion on whether the person lacks, or may lack, capacity and will need to accompany the application to the Court of Protection.
The Court has a specific set of forms and a process in place for any applications. The person wishing to be appointed as Deputy should normally be a family member or a close friend, and ideally there should be agreement between other family members/friends as to who is most suitable for the role. The Court is generally reluctant to appoint joint Deputies unless there is a persuasive reason for this.
The person who has lost capacity should always be consulted and their opinion obtained, so far as possible, about who should help them manage their affairs. It is a requirement of the Court process that they, and others who are closely involved with them, be notified of what is happening.
When applying, a short summary of the reasons why the person applying is suitable and why their appointment would be of benefit to the person who has lost capacity should be set out. A more detailed witness statement will need to be provided, together with an overview of the extent of the estate to be managed.
The proposed Deputy will also need to send a formal declaration regarding their understanding of the duties that will be placed on them by the appointment.
All of this together will enable the Court to consider whether the appointment is appropriate, or whether someone else (perhaps a professional Deputy) would be better placed to assist. The Court will issue an Order giving powers to the Deputy and setting out any restrictions or requirements it thinks are appropriate.
The cost of an application to be appointed as Deputy for someone will normally be met from the estate of the person lacking capacity, once the appointment is made.
Duties and supervision
There are extensive duties imposed on a Deputy, whether they are professionals or not. Comprehensive guidance is set out on the Gov.uk website. Deputies are expected always to act in the best interests of the person lacking capacity, and to apply the principles of the Mental Capacity Act 2005 in the decision-making process.
The Deputy must keep records and report each year to the Office of the Public Guardian (‘OPG’) whose role it is to supervise Deputies. The OPG are streamlining their reporting process so far as is possible and hope to be able to deal with most of this online in the future.
How we can help
If an application is needed to appoint a Deputy for a person who needs assistance in managing their financial and property affairs, we can assist.
Our experienced Partners within the Life team can and do act as Deputies for clients who have capacity issues.
If help is required with making an application to the Court of Protection to have a non-professional appointed as Deputy, the Life team can willingly offer their assistance and expertise in this area too.
Dan Snedden is head of Berwins' Court of Protection unit and supports the representatives of individuals who are no longer able to manage their own personal and financial affairs.