My first article in this series concerned matters relating to legal procedures which must be followed in order to appoint a property and affairs Deputy on behalf of someone who lacks mental capacity.
In today’s edition, we will examine Deputy’s role in more detail and his or her duties, once appointed.
A property and affairs Deputy is usually authorised by the Court of Protection to take possession and control of the protected party’s assets and exercise the same powers of management and investment as the person who lacks capacity would have had, had they not lost capacity. A deputy would therefore take control and management of the day to day living expenses, which would typically involve paying that person’s monthly bills and keeping detailed records of expenditure.
Duty to act in best interest
The first rule Deputies must remember is that any property and finance decisions must always be in the protected party’s best interest. In working out someone’s best interests, one should bear in mind their past and present wishes, their beliefs and values, the views of family members and carers and whether or not they might regain mental capacity.
For example, Peter’s father suffered a brain injury and lacks capacity to make financial decisions for himself. The Court of Protection appointed Peter as his father’s Deputy. Peter’s father’s estate comprises of his property, stocks shares and a couple of bank accounts. He has asked Peter to make a large gift on his behalf to Peter’s sister. What do you do then?
In a situations such as this one, the Court would expect Peter to consider the size of his father’s estate, the extent to which he was in a habit of making large gifts before the onset of incapacity, his life expectancy, whether he will require residential or nursing care and what would be the cost of such care, whether he have a will and would it interfere with the devolution of his estate under his will or indeed under the rules of intestacy.
Having considered any such factors, Peter may well conclude that the gift is affordable and will not adversely affect his father’s quality of life. In that case, unless Peter has already been authorised, he must make an application to the Court of Protection for an order conferring authority on him to proceed with the gift.
In another example, Beata’s father suffers with dementia and lives in a care home. Beata was appointed as her father’s property and affairs Deputy by the Court of Protection and is partially funding the care home. She is struggling to meet the fees. The only asset that her father has is his property. Beata wants to sell it to help her pay the fees and any other costs that she incurs. As above, Beata would be required to consider whether selling the house would be in her father’s best interest applying the same principles as mentioned above.
Deputies should also consider whether the person who lacks capacity is eligible for any local authority funding and carry out a benefits review.
If applicable, a Deputy should complete and submit tax returns to avoid incurring any late filing penalties and in rare circumstances.
Deputies are supervised by the Office of the Public Guardian (OPG). The purpose of the supervision is to provide support to deputies and to protect people who lack capacity from abuse and exploitation.
Deputies are also required to submit annual reports setting out any important financial decisions in the previous deputyship years.
It is therefore vital that Deputies keep a detailed record of any significant financial transactions.