The coronavirus pandemic has spread to care homes across the country, causing many residents to sadly die. This has led to many families wanting their elderly relatives to put their legal affairs properly in order. Unfortunately, a significant number of care homes are populated by residents with dementia. These residents are no longer able to manage their financial affairs and, in fact, are unable to make lasting powers of attorney. What can families do to put the affairs of their elderly relatives in order?
Deputyship application
In order for a person to take control of another person’s affairs, in the absence of an enduring power of attorney or lasting power of attorney, it is necessary to make an application to the Court of Protection for a Deputyship Order.
Deputies can be appointed to deal with property and financial affairs, or with personal welfare issues, on behalf of a person who does not have capacity.
A property and financial deputy is able to manage bank accounts, as well as pay care home or other fees. A Deputyship Order may also be needed to sell the property of somebody who does not have capacity. A property and financial deputy is different to a personal and welfare deputy, who can make decisions about where you live and the care you receive, as well as make some decisions about the medical treatment you may receive.
Who can be appointed as a deputy?
If you wish to be a deputy, you need to be an adult over the age of 18 years. There is also a requirement that you do not have a criminal record. If you make an application for a Deputyship Order, The Court of Protection can examine your own finances to make sure that you are regarded as being suitable to be a deputy. Some deputies are professional panel deputies chosen from a list of approved deputies, but the majority of deputies are people who are not professional deputies and may well be a relative of the person who lacks capacity.
What are the chances of being appointed a deputy?
The statics seem to show that the chances of being appointed a property and financial affairs deputy are good, where need can be shown, as long as the Court of Protection feels that you are suitable. However, the Court of Protection are very reluctant to appoint personal welfare deputies, on the basis that it should be the professionals such as social workers and medical practitioners who make decisions, taking into account the best interest of the person lacking capacity and the views of the family. These days, the chances of obtaining a personal and welfare deputyship order are not very good. In fact, some solicitors have said that they will not advise and assist their clients in personal and welfare applications due to the success rate being so poor.
How long does it take to make an application?
An application for a Deputyship Order can take several months. In exceptional cases it may be possible to make an emergency application. In these cases, you normally need to show that there is a clear risk that the person lacking capacity may suffer serious loss or harm.
What are the costs?
There is a court fee currently of £365. In some case, people may be eligible to have the fee reduced. However, many people that apply for a deputyship order do obtain the assistance of a solicitor because the application is regarded as quite complicated. Often, prospective clients pay the costs and reimburse themselves, once the deputyship order is made, out of the bank account of the person who lacks capacity.
What duties does a deputy undertake?
There are a lot of duties which fall upon a deputy. The most important duty is to act in the best interest of the person who lacks capacity. They also need to act with proper care and skill. They must not allow themselves to be in a situation where there could be a potential conflict with the person who lacks capacity and they must not take advantage of the situation or the person who lacks capacity. This is referred to as a fiduciary duty. Amongst other duties, there is one to act in good faith, as well as a duty not to delegate decisions unless authorised to do so in the Deputyship Order. They also must make sure that they comply with the directions of the Court of Protection. Deputies must be careful in ensuring that they keep separate accounts. It must be ensured that their money, and the assets of the person who lacks capacity, are kept separate. Annual reports must be filed under the general supervision of the Court of Protection.
What can a deputy not do?
A deputy can’t make a will or create a trust. They cannot decide who the person that lacks capacity can or cannot come into contact with. This is not a comprehensive list and there are other matters which cannot be done on behalf of the person lacking capacity.
What are the deputy’s legal liabilities?
Deputies must ensure that they comply with the Mental Capacity Act code of practice and the Order appointing them. If they fail to do so, act beyond the power granted to them, or do not carry out their responsibilities properly, then they can be legally liable. The Court of Protection will require a prospective deputy to take out a security bond. If the deputy has not acted appropriately, steps can be taken to enforce the security bond or even authorise legal action against the deputy.
Being a deputy is a serious matter, carrying onerous responsibilities. In these circumstances, it is important for someone who is applying to be a deputy to take proper legal advice.
Call Winston Solicitors on 0113 320 5000 or email mkv@winstonsolicitors.co.uk
