With increased life expectancy, it is becoming increasingly common for people to cease, at some point, to be able to manage their own affairs. The need to protect those who cannot protect themselves has never been greater. For example, do you know how you would be protected if you became incapable of understanding your financial affairs or if you were to have an accident and suffer brain damage?
These are not new problems and it is now centuries since government first intervened to provide assistance and security in such circumstances through the Court of Protection. This body is run by its administrative arm, the Public Guardianship Office (PGO).
The aim of this department, which is part of the Lord Chancellor's Department, is to look after the financial affairs of those who are not mentally capable of doing so. The department treats these people as clients, accepting as its professional duty the need to promote their interests and protect their financial and social well being. The process starts with the appointment of an appropriate person to look after their affairs. Once that appointment is made, guidance and help is given by the PGO, which also guarantees honesty, as far as possible, by scrutinising annual accounts of all money handled.
Of course, by the time the PGO and Court of Protection become involved, the person who needs their help cannot give sensible instructions or express his or her own wishes. How can the court be sure that the right person is selected?
There are two ways of being appointed to look after someone else's financial affairs and being recognised as such by the PGO. The first is by carrying out the wishes expressed by someone who has appointed you to act under an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA). This is the route typically used by older people to appoint their children, or others, to act. The power of attorney is signed by its ‘donor’ at a time when he or she understands what is needed and is still fully capable of managing their own affairs. The appointed person can continue to act after the person who appointed him or her becomes incapable of managing their own affairs.
The second method is by making an application to the Court of Protection to be appointed as a ‘receiver’. This is done by a well-wisher, relative, or a local authority social services department, when someone becomes incapable of managing their affairs and has not had the foresight or the opportunity to execute a power of attorney. Receivership applicants are strictly scrutinised by the PGO to make sure that they will act responsibly and that they are the right person for the job. In this case, the PGO will only become involved once a medical certificate has been produced which confirms that the person is mentally incapable.
If you are appointed in either of these circumstances, the PGO will monitor and support you to make sure you act in the best interests of the person you are helping.