Where a person (“P”) lacks mental capacity to manage their affairs, a Court application for the appointment of a Deputy for Property and Affairs is likely to be required, where P has assets within the UK. The appointment of a Deputy is a formal Court process and the Deputy is often a professional, but can also be a family member of the incapacitated person, in certain circumstances.
A Deputy (whether professional or lay) will have a duty to act in P’s best interests which will include documenting all decision making, accounting to the Court with all financial and best interests determinations and being able to effectively manage a fund with a high degree of accuracy and skill on P’s behalf.
Frequently, P may have lived in England for their entire adult life (and hold assets in the UK) but the majority of interested family members live abroad. That in itself will not necessarily be a barrier to an appointment as lay Deputy, but will be one of the matters that the Court will take into account when considering whether a particular applicant is suitable, or not.
In addition, a Deputy will have to be free or criminal convictions or bankruptcy proceedings (historic and current) and the Court must be satisfied that they are a fit and proper person for the appointment to this important fiduciary function.
Where the proposed Deputy is resident abroad, the Court may want evidence on the closeness of the relationship between the proposed Deputy and P. That might include frequency of visits to the UK and demonstrating an ability to deal with various financial institutions on P’s behalf. There may also be costs consideration for wanting a more local Deputy and some assurance that P’s fund will not be disproportionately eroded by meeting the travel costs associated with a non-resident Deputy, click here to read more.
The Court will also have to consider the potential applicant’s literacy and numeracy skills and an ability to communicate in English on P’s behalf, where his or her assets are located in the UK. This specific issue was recently discussed by the Court in the case of Re FH where the Court decided to appoint a Deputy that had limited ability to communicate in English, but had developed tried and tested strategies to enable him to fulfil his function.
That case turned on its specific facts and despite agreeing to appoint a Deputy with a basic knowledge of English, the Deputy was only granted an order limited in scope and one that would be subject to review by the Office of the Public Guardian, a body that supervises all Deputies.
Managing a fund on behalf of an incapacitated person is an involved and often onerous task. It is important that P’s best interests are met and managed accurately to avoid any loss to P or risk of mismanagement. Where a fund is complex ,a professional Deputy experienced in Court of Protection work is likely to be a sensible choice, if not an essential appointment, to ensure the proper administration of the Deputyship. We frequently act as professional Deputies for clients and are able to provide advice on all aspects of Deputyship applications.