Court of Protection Solicitors Newcastle

A financial deputy is someone appointed by the Court of Protection to manage the property and financial affairs of an individual who lacks the capacity to do so themselves.

A financial deputy’s duties include (but are not limited to) paying bills, managing bank accounts, ensuring long term sustainability of funds through budgeting and making appropriate investment decisions, arranging care packages, securing (where entitled) care funding and benefits, meeting tax obligations, and reporting to the Office of the Public Guardian.

Deputies may also be involved in property adaptation projects and making family care/ gratuitous care payments (with Court approval in the case of lay deputies).

Deputies should understand an individual’s needs, circumstances and goals (including medical, rehabilitative, and emotional) and work collaboratively with other professionals where appropriate such as case managers, occupational therapists, care staff, financial advisors, architects and accountants to maintain or improve an individual’s quality of life.

A person lacks capacity to manage their own finances when they are unable to understand the information related to their financial affairs, remember that information, or use it to make reasoned decisions about their finances.

This inability could be due to various factors such as a brain injury acquired at birth, a road traffic accident, dementia or substance misuse.

A lack of capacity can be permanent, temporary or fluctuate. An individual may have capacity to make some decisions but not others (for example an individual may be able to manage a small amount of money, but the deputy may have to manage larger sums).

Having a deputy appointed gives those that lack capacity a layer of financial protection.

A deputy’s role is ever evolving, and the role of a lay deputy (a family member or friend) is different to that of a professional deputy.

A lay deputy will often be appointed for an elderly relative by family members. Their role will normally consist of making sure any care home fees, rent, utilities or other living expenses are paid. A deputy is authorised to access and manage that person’s bank accounts and can budget their money accordingly. The deputy must keep records of any decisions they have made, and ensure that they are acting in that person’s best interests at all times.

The deputy will need to keep bank statements and record their spending of the person’s money, as each year the deputy is required to submit an accurate annual report to the Office of the Public Guardian.

Anyone over the age of 18 can be a deputy. Often a family member or close friend will take on the role of lay deputy, but a professional one can be appointed as well.

If there are large sums of money involved, then it may be preferable for a professional deputy to be appointed, who will be better experienced in dealing with such sums.

A Lasting Power of Attorney (LPA) is proactive and a deputyship reactive.

With a LPA an individual whilst they have capacity appoints someone (an attorney) they trust to manage their affairs when they can’t.

If an individual does not have an LPA and loses capacity, the Court of Protection will appoint someone (a deputy) to manage their finances.

Any person who has capacity can put in place a Lasting Power of Attorney, which will come into force should they lose capacity. The advantage of this is that a person can choose who they would like to be their attorney, and they can even authorise the attorney(s) to help them with financial matters before they lose capacity.

However, if someone loses capacity quickly or unexpectedly, for example due to an accident or a rapid onset of dementia, they can no longer appoint an attorney. This is because they no longer have capacity to make that decision. In these cases, a deputy can be appointed.

The process can seem daunting, but Hay & Kilner are here to help! A person who would like to become a deputy must first formally notify at least three people who are connected to the person who lacks capacity, that the application is going to be made. These three people can either consent to the application, or if they wish to oppose it, then the matter will be listed for a court hearing.

The person who is believed to lack capacity must also be notified of the application and given the opportunity to respond.

Once this has been done an application will be completed, giving details of the proposed deputy, details of the person who lacks capacity, details of all financial circumstances and any assets or property held.

This will then be sent to the court of protection along with evidence of that person’s level of capacity, completed by a suitably qualified professional such as a GP or social worker.

The deputy must also complete a deputy declaration, giving undertakings to the court to act with integrity and to carry out their duties to the best of their ability.

Generally, the application itself can be completed in a few weeks. Once it has been submitted, the court will consider the application before issuing a Deputyship Order.

The length of time this takes depends on the court, with most straightforward applications taking up to 12 months to reach a conclusion.

The OPG is a regulatory body that supervises deputies (both lay deputies and professional ones). They ensure that deputies are carrying out all their duties correctly, and will investigate any concerns raised about the conduct of a deputy.
Each year deputies are required to submit a report to the OPG detailing all decisions they have made and any money they have spent on behalf of their protected person. The OPG can help deputies with any queries they have about their duties and responsibilities.

A deputy is someone appointed by the Court of Protection to deal with the affairs of a person who lacks the mental capacity to do so themselves. Anyone over the age of 18 can apply to the court to become a deputy, and depending on the level of work required, a family member or friend may be willing to take on this responsibility. If large sums of money or property are involved, then it may be preferable for a professional deputy to be appointed.

There are a number of steps to the deputyship application process:

1. A medical or social care professional will need to complete a capacity assessment (on form COP3).

2. The applicant (or their representative) must inform the protected individual about the application.

3. The applicant must tell 3 people about the application. This is typically relatives. The Court of Protection Rules 2017 and Practice Direction 9B sets out who should be notified.

4. Once 14 days have passed since the notifications in steps 2 and 3 have passed, the application is submitted online. The application includes information about the protected individual and finances as well as a declaration by the proposed deputy confirming they are financially sound and understand the responsibilities they will be taking on.

5. Before the Court of Protection send their Deputy Order, they require a security bond to be paid (the level is set by the Court). The purpose of the bond is to protect the protected individual’s estate should the deputy fail to perform their duties.

6. Straightforward orders can take 4-6 months, but this timeframe can be extended if there are Court backlogs or if applications are complex (e.g. if someone objects, or the Court wants further information to assess whether an order is in the protected individual’s best interest). In the interim it can be worthwhile the applicant considering whether to be appointee for the protected individual’s benefits.

A deputy can retire.

Where there has been a breakdown in the relationship between the deputy and the protected individual, or if the deputy is no longer acting in the protected individual’s best interests, a deputy can be replaced.

An application to the Court of Protection is required for both retirement and replacement. The Court will consider the suitability of any replacement. Until a new court order is received, confirming the appointment of the new deputy, the current deputy is still bound to act on the protected individual’s behalf.

Ultimately the Court of Protection will need to be satisfied that any change of deputy is in the protected individual’s best interest.

This can depend on how many ongoing applications the court must handle. However, a realistic timescale is 4-6 months. In cases where there have been allegations of misconduct or a serious breakdown in the relationship it is possible the court may treat this as an urgent application and deal with it much more quickly.

A professional deputy is paid for the work they carry out from the individual’s funds they are managing. Professionals will be paid for any applications and on annual basis for managing a person’s affairs. A professional deputy will submit a detailed bill to the Senior Court Costs Office (SCCO), which is assessed by a Costs Officer. The SCCO determines what is reasonable and proportionate to charge, considering the deputy's work and an individual’s assets and income.

In personal injury and clinical negligence cases, the costs of the professional deputy, including application fees and ongoing management, are typically included in the "schedule of loss" presented to the court during litigation and thus form part of the compensation awarded.

The Office of the Public Guardian (OPG) supervises deputies appointed by the Court of Protection. The OPG ensures deputies are acting in accordance with the Mental Capacity Act 2005, the Court of Protection's order, and in the best interests of the person who lacks capacity. Deputies are required to submit annual reports to the OPG, detailing significant decisions made and financial management. Supervision by the OPG encompasses reviewing annual reports, visiting deputies, and investigating concerns about their actions.

In personal injury and clinical negligence claims, a professional deputy is usually appointed during litigation where an interim payment has been received or imminently expected, or where liability has been settled and an award made.

In other cases, a professional is usually appointed where there is no family or friend willing or able to act, or where matters are complex.

Professional deputies are often preferred by the Court in complex matters. This is due to their expertise in dealing with investments, significant care packages and property adaptations, for example, and for their knowledge of the Mental Capacity Act 2005, deputy standards and Court process.

A deputy’s authority is limited. For actions falling outside this general authority, deputies must seek specific authorisation from the court. Specific authorisations include:

Gifts - A deputy cannot make gifts of substantial value without Court approval. Typically, deputies are only permitted under their “general authority” to make gifts on customary occasions (e.g. birthdays, Christmas, marriage) to people who are related to or connected with the protected individual, or to charities that the protected individual might have made, provided that the value of the gift is not unreasonable having regard to all the circumstances, and particularly the size of the estate. Any other gifts must be authorised by the Court of Protection.

Family care payments - If a lay deputy is proposing to pay a family member for the care that they are providing to an incapacitated individual, then authority for making such payments must be sought from the Court of Protection.

Interest free loans – Interest free loans can only be made with the Court of Protection’s permission.

Selling property - A deputy cannot sell jointly owned property without a separate trustee application to the Court of Protection. This is because selling jointly owned property requires the deputy to act as a trustee, which is not part of their standard duties. Whether a deputy can sell solely owned property without application to the Court of Protection will depend on the authorisations provided in the existing orders.

Purchasing property – If an existing Court of Protection order doesn't explicitly grant authority for the deputy to purchase property on behalf of the incapacitated individual, the deputy must apply to the Court of Protection for permission.

Litigation - Specific authorisation is required from the Court of Protection to conduct litigation on behalf of a protected individual, even if the person has a "general authority" to manage their affairs.

A Statutory Will is a Will made by the Court of Protection on behalf of someone who is unable to make one themselves because they lack the required mental capacity.

An individual will lack capacity to make their own Will if they cannot understand the nature and effect of a Will, the extent of their property, be aware of individuals who would expect to inherit from them (such as family members) and be free from any delusions or other mental disorders that could significantly affect their decision-making about their Will.

Deputies, attorneys and anyone entitled to inherit under the incapacitated individual’s current Will or intestacy rules, can apply to the Court of Protection without permission. Other individuals must obtain the Court of Protection’s permission beforehand.

Statutory Wills are often applied for when there has been a change in family or financial circumstances, the existing Will is outdated (for example, due to the death of a beneficiary), or the intestacy rules do not reflect the incapacitated individual’s wishes. In England & Wales, the intestacy rules determine who inherits when someone dies without a Will. The rules prioritise family members in a specific order.

A Statutory Will involves completing court forms and providing the proposed Will, evidence of why this is in the incapacitated individual’s best interest, financial information concerning the incapacitated individual’s estate, and a medical certificate confirming lack of testamentary capacity. The Official Solicitor is often appointed to represent the incapacitated individual to ensure the Will is in their best interest. The Court of Protection will then consider the application and may hold a hearing if needed, ultimately deciding whether to approve the Will.

Hay & Kilner have an expert team well versed in all types of applications to the court of protection. Whether you want to become a deputy yourself, take over for someone else, or pass the reins to one of our own professional deputies, we can help!
To find out more, or to contact our team for a free, informal chat with no obligation contact us on 0191 232 8345.