If a person lacks mental capacity and has not put in place a power of attorney beforehand, it is likely that they will require the support of a deputy to manage their financial affairs and, in limited circumstances, to make decisions regarding their health and welfare.
It is essential the person chosen to be your deputy is the right person in the circumstances as they have such a vital role to play. It is vital that they take account of your wishes where possible and that they do not impose their own views and judgements on as all decisions must be in your best interest, as outlined in the Mental Capacity Act 2005.
A deputy must be at least 18 years old and have the requisite mental capacity themselves.. It could be a family member or a friend. It can also be a professional person such as a solicitor. In complex cases, particularly those involving large sums of money or where there is any form of family dispute, the court may prefer to appoint a professional deputy. It is also possible for a family member or friend to act alongside a professional deputy in a joint capacity.
When you’re making a decision, you must:
- Make sure it’s in the other person’s best interests
- Consider what they’ve done in the past
- Apply a high standard of care - this might mean involving other people, for example getting advice from relatives and professionals like doctors
- Do everything you can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language
- Add the decisions to your annual report which must be submitted each year. It may also be the case that the OPG wish to visit you on occasions to ensure the protected parties needs are being fully met
You must not:
- Restrain the person, unless it’s to stop them coming to harm
- Stop life-sustaining medical treatment
- Take advantage of the person’s situation, for example abuse them or profit from a decision you’ve taken on their behalf
- Make a Will for the person, or change their existing Will
- Make gifts unless the court order says you can
- Hold any money or property in your own name on the person’s behalf
- You keep records of the finances you manage on their behalf in your annual report
The list of ‘dos’ and ‘donts’ is therefore quote onerous which is why many people choose to appoint a professional to deal with matters on their loved ones behalf. It is worth noting that you could be fined or sent to prison for up to 5 years (or both) if you mistreat or neglect the person on purpose.
At Stephensons we have a wealth of knowledge in dealing with Court of Protection deputyships. We can manage matters as straight forward as payment of bills and ensuring care plans are in place to the purchase and adaptations of properties to meet a specific client’s needs.
If you would like to discuss how we can assist you, please call us on 0161 696 6238 or complete our online enquiry form and a member of our Wills and probate team will contact you to discuss your requirements.
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