Lack of ‘capacity’ is a technical term used when someone is basically unable to look after their own affairs for any reason. Those of us with capacity to look after our own affairs have the opportunity of anticipating our possible loss of capacity to do so in the future by making a Lasting Power of Attorney (LPA). Those without capacity cannot do this and fall under the protection of the Court of Protection whose role is to administer the affairs of persons without capacity.

The Court of Protection is part of the Family Division of the High Court. It has wide and flexible powers to protect such people known as ‘Patients’ which include:-

• Making declarations of capacity
• Making one off decisions on behalf of Patients
• Appointing a Deputy to make decisions on behalf of Patients
• Giving directions in respect of Lasting Powers of Attorney

The Court of Protection exercises a statutory jurisdiction over the property and affairs of its patients, but the practical supervision of the patient’s affairs is carried out by the Public Guardianship Office (OPG) which has statutory responsibility for administering Lasting Powers of Attorney, arranging insurance of Court appointed Deputies and generally overseeing the conduct of attorneys and managers.

The Official Solicitor

The role of the Official Solicitor is to represent the interests of a patient in any proceedings before the Court of Protection where they might otherwise not be adequately represented.

Deputyship

Deputyship is governed by the Court of Protection under the Mental Capacity Act 2005 which came into force on 1 October 2007. If, after considering medical evidence, the Court is satisfied that a person is incapable by reason of mental disorder of managing or administering his or her affairs, then a Deputy may be appointed. A Deputy Order is the document issued by the Court, which sets out the powers of the Deputy.

If you have been appointed as a deputy for property and affairs, your powers may include dealing with benefit payments, pensions and bank accounts on behalf of the person lacking capacity, and to spend this money appropriately on their behalf.

If you have been appointed as a deputy for personal welfare, the order may authorise you to make decisions about the care or medical treatment that the person receives.

There are three pre-supposing factors:

1. That the person has property and affairs need to be managed.
2. That the person is suffering from a mental disorder which would include a learning disability.
3. As a result of the disorder, the person is incapable of managing his property and affairs.

Process of making the application

There are a number of forms that have to be completed and submitted to the Office of the Public Guardian (OPG) which is the administrative arm of the Court of Protection. All of them can be downloaded for free on the OPG www.publicguardian.gov.uk and Directgov websites.

Notification

You must provide details of at least three people who you reasonably believe have an interest in the application. This may be relatives of the person who lacks capacity. They must be served with a notification of the application so that they have the opportunity support or oppose your application.

You will receive support and supervision as a Deputy. The OPG is responsible for ensuring that Deputies act in the best interests of the person who lacks capacity and follow the direction given by Court. They do this by considering the following;

• Complexity of the affairs of the person who lacks capacity
• The types of decisions that need to be made
• Case requirements of the person who lacks capacity
• The relationship between the Deputy and the person who lacks capacity.

The OPG carries out an assessment (for a fee of £100) to decide the appropriate level of supervision and support. A deputy will be allocated one of four supervision levels, each of which has it’s own annual fee that is set by Parliament. The level of supervision is regularly assessed to see whether it is still relevant to the circumstances.
Supervision may involve any or all of the following.

• Requiring a deputy to provide an annual report to the Public Guardian
• A Court of Protection visitor coming to visit the Deputy and/or the person lacking capacity to ensure that the Deputyship is working for both of them and that the Deputy is making decisions in the best interests of the person lacking capacity
• Regular contact with the Deputy and others with an interest in the welfare of the person who lacks capacity.

What are the costs of a Court appointed Deputy?

• £100 one off fee for assessing supervision level
• Annual supervision fee
• £400 court application fee
• Any medical fees that may be charged in assessing capacity
• Any legal fees in helping with making the application

Who is responsible for paying the fees?

These are payable from the funds of the person for whom the Deputy was appointed. Fee exemptions and remissions are available. These are primarily means tested. For more information please see the OPG booklet 506

How can the person who lacks capacity be protected from financial loss?

If you are appointed Deputy responsible for property and affairs, the Court may require you to provide some form of security, for example a guarantee bond, similar to a specialist insurance policy, to cover any financial loss that may occur.

Disclaimer

The contents of this presentation do not constitute legal advice. Independent legal advice should be sought before acting upon any of the issues raised in this presentation, the contents of which are based on the current understanding of taxation and trust law which is always subject to change.

Jan Atkinson (TEP) (CTAPS)
Osbornes Solicitors
Livery House
9 Pratt Street
London NW1 0AE

Tel: 020 7681 8678
Fax: 020 7485 5660

janatkinson@osbornes.net