Making a Lasting Power of Attorney
We take you through what deputyship is, how to apply and what the role can entail. If you are already a deputy and are unsure about the role you should be taking, how much you should be doing and what authority you have then we will also address these issues.
A Lasting Power of Attorney is a legal document that allows an appointed person to make decisions in the event that they lose the mental capacity to do so. If a family member or close friend has not drawn up and registered a Lasting Power of Attorney and has lost, or is beginning to lose, their mental capacity then you will need to apply to the Court of Protection to obtain a Deputyship Order. The Court will always make a decision in the interests of the person who has lost capacity and so can refuse your application.
A Deputyship Order is obtained from the Court of Protection and is the paper that states your powers as a Deputy. It sets out strict boundaries as to what you as a Deputy can and cannot do on behalf of your loved one. As a specialist court, the Court of Protection is responsible for overseeing financial as well as wealth and welfare issues for someone who has lost mental capacity. The court will consider medical evidence before making a decision as to whether appointing a Deputy is necessary.
Deputies play an important role in the care of a person who has lost capacity. It is your responsibility to take into account their needs and act in their best interests (as set out in Section 4 of the Mental Capacity Act 2005) at all times, safeguarding their assets.
A Deputy’s responsibilities include the following:
- making decisions which the person you represent cannot make
- assisting the person you represent to maximise their capacity to make any decisions for themselves
- working closely with and supporting family members, healthcare professionals, case managers to ensure needs are met
- ensuring the person you represent gets the best possible quality of life
- working with other parties to ensure their property, tax affairs and investments are managed
- reporting annually on the financial decisions you have made
As we have outlined, a Deputy makes decisions on financial matters that a person is unable to make them themselves. This includes managing the day-to-day running of their financial affairs like paying energy bills, council tax and rent as well as managing cash flow and budgeting. In order to effectively handle their income and expenditure, you may need to open a bank account. You may need to make decisions in other areas, covering everything from managing their investments and tax affairs to paying for a holiday.
Investments – You will need to seek advice on any investment of funds and then act on this advice.
Tax – You will need to make sure that their tax affairs are in order and that any tax is paid on time.
Although your role is primarily to help them with financial decisions, it also includes supporting them on property matters. This covers the rental, purchase, and even sale of a property as well as ensuring that any property they own is adequately insured and maintained.
You will need to liaise with other parties in order to ensure the best interests of the person who has lost capacity are served. This may require you to provide support where needed to family members and friends, healthcare professionals like social workers, as well as case managers. If not already in place, you may need to appoint a care team.
As a Deputy, you must keep records of the decisions you have made on behalf of the person who has lost capacity and report them to the Office of the Public Guardian on an annual basis. The Public Guardian is responsible for the supervision of Deputies and this supervision can vary depending on each case.
You should keep receipts, bank statements and any other details of transactions you make on behalf of your loved one. The Public Guardian requires evidence of how you managed every aspect of the incapacitated person’s financial affairs to ensure you are acting in their best interests.
It is important to point out that a Property and Affairs Deputy cannot make decisions about health and welfare issues.
The role of a Deputy is a complicated one. There might be some decisions that need to be made which are difficult, emotional or tricky to approach. Even after becoming a deputy, some companies can be very difficult to deal with. Organising utility bills can be frustratingly hard as they do not immediately recognise a Deputy’s authority or even know what a Deputy is and this can make explaining who you are and what you are doing even harder.
A Deputy can be a partner, spouse, relative or friend. These are referred to as a ‘Lay Deputy’. A Deputy can also be someone who has been professionally appointed, such as a solicitor. You have to be over the age of eighteen to be a Deputy and be capable of making financial decisions.
Applying for a Deputyship Order is a complex process, and can therefore be a lengthy and expensive task.
The Court of Protection is duty bound to assess your suitability to look after the affairs of the person who has lost their capacity. It is for these reasons that it is always preferable to have a Lasting Power of Attorney in place.
If a Lasting Power of Attorney is not in place, you will need to apply to be a Deputy. There are a number of forms that need to be completed which provide a large amount of detail on both you and the person who is having difficulties making decisions. The Court also requires detailed information about the financial situation of the person who has lost capacity.
One of the requirements of the application is a Deputy’s Declaration, which contains information about the Deputy and your commitments. A Medical Certificate is also obtained. This covers all of the information about your loved one and why they require a Deputy. A key part of this document is an assessment from a medical professional like a GP outlining the person’s capacity to make decisions for themselves. The Court will use this information in order to make a decision if the person lacks capacity.
The application is reviewed and a decision made by the Court usually within 8 weeks, providing there are no complications. Once the decision is made the papers have to be served and there is further process to follow which takes at least another 8 weeks. However, if more information is needed or there any objections it can take many more months before a decision is reached. Once the court approves your application, Once the order has been confirmed a financial bond has to be taken out and then you will receive a one-page certificate from the Office of the Public Guardian that you can use as your evidence of Deputyship.
We provide support to our clients and their families, covering all aspects of their property and financial affairs, using either the Deputyship process or Lasting Power of Attorney.
The priority is to avoid the need to obtain a Deputyship Order by registering a Lasting Power of Attorney. However, if this is not possible, then we can help. Our solicitors have many years experience both acting as deputies and helping you become a Deputy.
It has been such a weight off my mind to start putting all my affairs in order so I don't have to worry and can pretty much forget about stuff and stop worrying that I need to sort stuff out. Helen at BB&C was so helpful explaining all the options and advising on what to do. Highly recommend their friendly and professional service.