People may lack the capacity to make some decisions about their own property and financial affairs. This could include, for example, people with Dementia, a learning disability, mental health problems, stroke or a head injury.
Depending on the circumstances, this may mean that a person needs a formal representative to make decisions on their behalf that they would otherwise make themselves e.g. decide to pay their bills, decide to open or close a bank account, decide to sell their house.
Any decisions made on someone's behalf in this way must be made in their best interest.
There is further information on Mental Capacity and the Mental Capacity Act 2005 in the Adult Social Care section.
The Mental Capacity Act 2005 allows you to appoint someone else to make decisions for you in the future, when you may lack the capacity to make decisions yourself. This is called a lasting power of attorney (LPA). It is a legal document allowing you to appoint one or more people to act and make decisions on your behalf in the future. Typically, people appoint family or friends to be their attorney but it could also be a paid professional such as a solicitor.
Planning ahead in this way allows you to choose who you would like to make decisions on your behalf and to decide what sort of decisions they can make. It could also save you and your family money in the long run. You can find more information about LPA and how to appoint an attorney on the GOV.UK website.
If somebody lacks the capacity to manage their property and financial affairs
If a person lacks the capacity to appoint a LPA and to manage their property and financial affairs somebody can still be appointed to make those decisions on their behalf, in their best interest.
You can apply to the Department of Work and Pensions (DWP) to manage somebody's welfare benefits and state pension. This is called being their appointee. An appointee is responsible for things like signing benefit claim forms, informing the DWP of relevant changes of circumstance and spending the person's benefits on their behalf and in their best interest. This arrangement can work well for people where their property and financial affairs are quite straight forward, they have no or a low level of savings and their income only comes from the DWP. The DWP may also consider an appointee if they believe somebody is severely disabled. There is no cost involved in becoming an Appointee. You can find out more about becoming somebody's appointee on the GOV.UK website.
Deputy for Property and Financial Affairs
If somebody lacks capacity and the property and finance decisions that need to be made on their behalf are more complex it may be appropriate to apply to become their deputy for Property and Financial Affairs. For example, the person may have income other than welfare benefits (e.g. a private pension), savings or investments that need management or a property to be sold.
In order to make those types of decisions on somebody's behalf when they lack the capacity to make them themselves (and an LPA is not already in place) an application must be made to the Court of Protection.
Anybody can apply to be somebody's deputy for Property and Financial Affairs, but it is usually a family member or friend. The Court make the decision about who to appoint as somebody's deputy.
An application form is required by the Court, as well as an application fee. Other fees apply if you are appointed as a Deputy. Once appointed you can reclaim these fees from the person that you are Deputy for.
If you feel unable to be somebody's deputy yourself, you could apply to the Court of Protection and request that a solicitor is appointed as deputy. If you are unsure which solicitor to appoint you can ask the Court to appoint the solicitor themselves; this is called a 'Panel Solicitor'. There will be fees charged by solicitors who act as deputy, which can be paid from the funds of the person they are deputy for.
There is a lot of help and information available if you would like to apply to be somebody's deputy. The Office of the Public Guardian oversees deputies and LPAs on behalf of the Court and also offers advice on applying to be a deputy and any problems once you are appointed. You could also ask a solicitor to make the application, rather than completing the application yourself. There will be a charge for this which can be recovered once the deputy has been appointed. At the end of this section you will find links to some organisations and websites providing further information.
Where a person lacks the capacity to make decisions about their property and financial affairs but there is nobody willing and appropriate to act on their behalf
Wherever possible, it preferable for a family member or friend to act as an appointee or deputy, or initiate that process. This is because they are likely to know more about the person, their family situation, their wishes, likes and dislikes, and so can more easily act in their best interests.
There may be situations where a person lacks the capacity to make decision about their property and financials affairs, all other options have been explored but there is nobody to act on their behalf. If this is the case the Surrey County Council Deputyship Team may either apply to be their appointee or deputy, or apply to the Court of Protection for a Deputy to be appointed.
The Deputyship Team only takes referrals from Surrey County Council Adult Social Care colleagues and in some instances Surrey Health colleagues. It does not take queries, requests or referrals from members of the public.
The team's referral criteria are:
- The person has been assessed as lacking the mental capacity to make a financial/property affairs decision (s) and
- The person has been assessed as lacking the mental capacity to appoint a lasting power of attorney or agree to a person managing their finances under any other arrangement and
- There is no one with current legal authority to manage the person's financial affairs, or the person with legal authority is not acting in the person's best interests and
- Other, less restrictive options, have been explored to provide support to the person to manage their finances but these would not be sufficient to achieve the person's best interests and
- There is no suitable and willing person able to apply for either appointeeship or deputyship to manage the person's finances, or to apply to the Court of Protection to request that a Deputy is appointed and
- The person is ordinarily resident in Surrey, or if not resident, supported by Surrey County Council Adult Social Care Services.
The Deputyship Team acts on behalf of people in line with the principles set out in the Mental Capacity Act 2005. It works to the requirements of the DWP in relation to appointeeship and is overseen by the Office of the Public Guardian on behalf of the Court of Protection.
The Deputyship Team charges to act as a person's deputy. These charges are set out in Practice Direction B – Fixed costs in the Court of Protection (a supplement to Part 19 of the Court of Protection Rules 2007).