Times of Tunbridge Wells Q&A - January 2018
If ever you were to lose the capacity to manage your affairs as a result of an illness or an accident and have not made a Lasting Power of Attorney (LPA), an application would need to be made to the Court of Protection for a deputy to be appointed.
What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document which allows you (the donor) to appoint someone you trust (the attorney) to make decisions on your behalf, including the circumstances where you lack capacity to do so. There are two types of LPA:
- Property and financial affairs
- Health and welfare
Under a property and financial affairs LPA, your attorneys can make decisions on your behalf such as buying and selling property, opening and closing bank accounts, dealing with your investments, managing your day to day finances, and claiming benefits and pensions. This type of LPA can be used at any time, even if you still have capacity. In those circumstances, it should be used by your attorneys with your consent.
A health and welfare LPA can only be used if you have lost capacity. It enables your attorneys to make decisions about where you should live, your day to day care to give consent to or refuse medical treatment on your behalf.
You can make one type of LPA and not the other. Ensuring an LPA is in place will mean that decisions can be made quickly and by someone you trust if you ever lose capacity.
Who can be appointed as an attorney?
You need to appoint at least one attorney and they must be over 18. If you choose more than one, you will need to decide whether you want your attorneys always to act together (a joint appointment) or whether they can also act separately (a joint and several appointment). A joint several appointment is the most flexible option. You can also choose to appoint a replacement attorney if your fist choice is unable to act for any reason.
What are they attorneys duties?
Your attorney has formal legal duties and must follow the principles set out in the Mental Capacity Act 2005 and the Code of Practice. Your attorney must act in your best interests and take account of your wishes, feeling and beliefs.
You can apply conditions and restrictions on the use of the LPA and can also include guidance as to how you would expect your attorney to act.
What happens if someone loses capacity but has not made an LPA?
An application can be made to the Court of Protection for a deputy to be appointed. Deputyship applications will often be made by relatives or close friends but can also be made by professionals, such as a solicitor. Again, it is possible to appoint property and affairs deputies and health and welfare deputies. However, the first type is much more common as decisions cannot be taken on someone else’s behalf about their property and financial affairs without formal authority in the form of an LPA or deputyship.
How is a deputyship application made?
All applications must be accompanies by a medical assessment of capacity. The proposed deputy must complete a set of application forms with details about the person for whom the application is being made. The proposed deputy will also need to provide a set of undertakings to the court. A court fee is payable.
What are the Deputy's responsibilities?
The Deputyship Order will set out the deputy’s powers. The deputy must also follow the principles in the MCA 2005 and the Code of Practice. They will be supervised by the Office of the Public guardian and will usually be required to complete an annual report, setting out all the key decisions they have made and an account of all income and expenditure.
If you would like to discuss the issues detailed above, please contact Brian Bacon on 01892 701275 or firstname.lastname@example.org. Alternatively please visit our website www.ts-p.co.uk/LPA
What is the Court of Protection?
The Court of Protection is a Court based in London which was created under the Mental Capacity Act 2005.
The Court has the authority to make decisions about property and financial affairs, and the personal welfare of people who do not have the capacity to make those decisions for themselves.
The Court can exercise its authority by making an order about a specific issue, or by delegating authority to make decisions to another person i.e. a deputy.
The Court will deal with any matters that are outside the scope of the deputy’s authority. It can appoint a new deputy or discharge an existing one if the person regains capacity.
What is a deputy?
A deputy is a person or, (for property and affairs cases) a trust corporation appointed by the Court of Protection to make decisions on behalf of someone who lacks the capacity to make the decision in question, themselves. The deputy can be a relative of the person concerned, or a professional such as a lawyer.
In matters relating to a person’s finances, a deputy is usually given wide powers to manage the person’s property and day to day financial affairs, and act as his or her agent. Any decisions made, or action taken, by the deputy must be made in the person’s best interests.
Who can be a deputy?
Anyone over the age of 18 can be a deputy, provided the Court of Protection considers them an appropriate person to be appointed.
Where appropriate, two or more deputies can be appointed to act together or individually.
Prospective deputies need to complete a declaration disclosing material facts about their personal history, which the Court will consider when making their decision. Prospective deputies must also give a personal undertaking to the Court confirming that they will apply the principles of the Mental Capacity Act 2005, the Code of Practice, and make other commitments regarding their duties as a deputy.
A decision to apply to be appointed as a deputy for someone is a matter for careful consideration, and not a commitment to be entered into lightly.
When is a lawyer appointed as a deputy?
Anyone can be appointed as a deputy so long as they are considered by the Court as a suitable person to act in this important role. There are however occasions when the Court, or indeed family members, will prefer the appointment of a solicitor. Examples are where there is a significant damages award to administer or where there is disagreement amongst family members.
In damages cases it is usually possible for the solicitor’s costs for acting as the deputy to be recovered as part of the overall claim.
To find out more, read our information sheet: The Court of Protection and the professional deputy
What are the main duties of a deputy?
The main role of a financial deputy is to manage the property and day to day financial affairs of the person who lacks capacity, for the benefit of that person. A deputy must act in that person’s best interests within the scope of the authority given by the Court of Protection, and is also accountable to the Court of Protection and Public Guardian. In practice, a deputy’s main responsibilities will include:
- Paying care costs and other expenses
- Collecting benefits, pensions and other assets
- Managing investments and property
- Completing an annual report showing the funds received and spent on behalf of the person concerned
- Preparing an annual tax return.
How do I apply to the Court of Protection?
If there is medical evidence to suggest that an individual lacks capacity to make their own decisions, an application can be made to the Court of Protection for a deputy to be appointed. The application could be made by a family member, friend, professional, or in some cases the local authority.
To make an application, Court of Protection forms will need to be completed and sent to the Court. These forms request information about the individual’s financial circumstances, the extent of the authority sought, and details about the proposed deputy to ensure that they are suitable. Links to the forms and further guidance can be found online at www.gov.uk/courts-tribunals/court-of-protection.
Alternatively, assistance can be sought from a legal professional to help with the application. In nearly all applications relating to a person’s financial and property affairs, the Court will allow for the fees of the professional to be paid from the funds of the person to whom the application relates.
If there are no firm proposals as to who should take on the role of a deputy, the Court can appoint someone from their panel of professional deputies.
A medical certificate, completed by a doctor or other suitable professional, must also be provided to the Court.
There will be a £400 application fee unless the individual is eligible for a fee exemption or reduction.
Will I have to go to Court?
In the majority of cases, provided there have been no objections to the application, the Court of Protection will usually make a decision based on the papers provided, without the need for a hearing.
If a hearing and attendance at Court is required, this would usually be as a result of someone raising an objection to the proposed deputy, or because of a dispute or query over the evidence on the person’s capacity. Alternatively, the Court may want further information or evidence on the application and direct that the best way for this to be provided is for the relevant parties to attend in person.
All parties will be notified of the need for a hearing.
Can a deputy make gifts of money?
An order appointing a deputy for a person who lacks capacity will usually authorise the making of small gifts to individuals or charities as well as to maintain someone for whom the person may be expected to provide. However, this does not confer an unfettered discretion to dispose of a person’s property. Any decision to make a gift must be in the person’s best interests.
Further, the order will only allow gifts which are not unreasonable having regard to all the circumstances and, in particular, the value of the persons assets. Gifts to individuals can only be made on important occasions (such as a birthday, wedding, or anniversary), to someone who is related to or connected with the person. Gifts to charities can only be made to organisations the person may have been expected to support.
Although a deputy’s authority to make gifts is limited, the Court of Protection has authority to make more substantial gifts. However, a formal application will need to be made explaining why the proposed gifts are in the person’s best interests, setting out their affordability and the interests of any persons potentially prejudiced by the proposals.
Can a deputy decide where someone lives?
A deputy appointed to manage a person’s property and financial affairs cannot decide where someone should live. Such decisions would usually be left to the person's family, medical practioners and/or local authority.
A health and welfare deputy may have authority to make this decision. However, the appointment of a health and welfare deputy is rare, and if there is no such person appointed and a disagreement arises as to where someone should live, an application should be made to the Court of Protection for a decision.
What is the Office of the Public Guardian?
The Office of the Public Guardian (OPG) supports the Public Guardian, which is a role created by the Mental Capacity Act. The OPG’s main function is to supervise deputies (and attorneys appointed under a Lasting or Enduring Power of Attorney) who are making decisions for persons who lack capacity. It therefore has a distinct role from the Court of Protection, which has judges who hear cases, provide authority to deputies, and make decisions.
The duty of the OPG is to protect the interests of those people in England and Wales who lack capacity to manage their own financial affairs, or personal welfare. It has the following key responsibilities:
- Maintaining a register of deputies and attorneys
- Supervising all deputies appointed by the Court of Protection
- Obtaining and approving annual accounts and reports submitted by deputies
- Arranging visits to deputies and persons who lack capacity
- Registering Enduring and Lasting Powers of Attorney
- Investigating concerns of financial abuse by attorneys and deputies and reporting to the Court of Protection.
Is it possible for a person who lacks capacity to make a Will?
Where a person lacks capacity to make a Will, it is possible to apply to the Court of Protection for a Statutory Will to be made on their behalf. This is a Will approved by the Court on behalf of a person who lacks capacity and will be made in their best interests. To apply for a Statutory Will, the applicant will need to supply medical evidence confirming lack of capacity to make a Will. The application can be made by the deputy or attorney of the person who lacks capacity, a beneficiary under an existing Will or intestacy, or a person for whom the person might be expected to provide.
It is important to remember that even if a person lacks capacity to manage their finances, it is possible they may have the capacity to make a Will.
To find out more, read our information sheet: The Court of Protection and Statutory Wills
Can I find out if I am a beneficiary of a Will of someone who has lost capacity?
A Will is a confidential document regardless of whether the person, who has previously made the will, lacks mental capacity. A Will does not become a public document until a person dies and a Grant of Probate is issued by the Probate Registry. However, a Will can be disclosed if authorised by the Court of Protection. A Will is not generally disclosed to a potential beneficiary unless it is in the context of Court of Protection proceedings, where parties are bound to respect its confidentiality.
Can I protect my benefits if I receive compensation for an injury?
Yes, it is possible to ring fence personal injury compensation so that it is excluded from any assessment of entitlement to means tested benefits. This can be achieved either by virtue of an award being held by a deputy under the authority of the Court of Protection, or by being placed in a Personal Injury Trust.
If you would like more information about taking such steps please contact our Court of Protection Team on 01892 510000
What can I do if I suspect that a friend or relative is a victim of financial abuse?
If you suspect that someone you know is a victim of financial abuse you should take action immediately. If there is an attorney or deputy involved, you should contact the Office of the Public Guardian (OPG) to report your concerns. The OPG has the responsibility and authority to carry out investigations to ensure that attorneys and deputies are acting appropriately, and can apply to the Court of Protection to remove an attorney or deputy. If there is no deputy or attorney in place, you should contact the local Social Services Safeguarding Adults team who will investigate allegations of financial abuse and, where appropriate, involve the relevant authorities.