There are many different circumstances that could give rise to a person losing capacity to make their own financial decisions, the most common of which is the onset of dementia.
Many people put provisions in place in case this happens, such as appointing an attorney to manage their affairs, by way of a Lasting Power of Attorney. However, if you are concerned that someone close to you is unable to make decisions regarding their affairs, and there are no such provisions in place, you could apply to the Court of Protection to be appointed as that person’s Deputy, obtaining authority to manage their affairs.
Every situation is different, and one of the first steps is to be satisfied that the person really has lost capacity. You should check whether they are able to weigh up the pros and cons of a decision about their money, whether they are able to understand the kind of decisions that they may need to make, and finally whether they can communicate their decisions, even by blinking or squeezing your hand. The Mental Capacity Act Code of Practice can give more information on how to assess whether a person has capacity. Ultimately if you do wish to make an application to the Court, you will require a formal assessment to be carried out by an appropriate person such as a GP or Psychiatrist so the Court has a medical opinion regarding the lack of capacity.
If you make a successful application to the Court to be appointed as a Deputy you will be able to make decisions on that person’s behalf and manage their financial affairs. This can include managing their daily affairs, such as paying bills, and in appropriate circumstances, enable you to make bigger decisions such as selling a property. You will be carefully monitored by the Office of the Public Guardian to make sure that you are always acting in that person’s best interests, and you will be restricted in the type of financial decisions you can make.
Section 4 of the Mental Capacity Act contains a best interests checklist, which can assist you by highlighting things which you should consider when making a decision about someone else. For example, you should encourage participation from that person, and consider all relevant circumstances by trying to identify all the things that they would take into account if they were making the decision for themselves.
There are lots of rules in place to ensure that appointed Deputies do not abuse the powers given by the Court, and consistently act in the person’s best interests in mind. You must ensure that you keep clear accounts and records of transactions made on behalf of someone else and submit an annual report to the Office of the Public Guardian.
At Hay & Kilner, we can guide you through the process of applying to be a Deputy, and the consequences of the same, as well as giving advice on the requirements under the Mental Capacity Act 2005, and whether a deputyship is appropriate in the circumstances.
For further information, please contact Stephanie Layton, Solicitor in our family team.
Call: 0191 232 8345