Property and finance decisions
Contact our specialist solicitors for assistance with your application for Property and Finance Deputyship
If a person lacks mental capacity to make decisions about their own property and financial affairs, then the decision has to be made by someone else.
If the person lacking mental capacity has a valid registered power of attorney (for finance) then their appointed attorney is legally authorised to assist them. If they don’t have an attorney, another option could be for a trusted friend/family member (or sometimes a professional) to apply to be an appointee to receive and manage any benefits on their behalf; this option only really works if the person has no other financial assets or income which require management.
The more common scenario is that someone without a valid power of attorney, who lacks capacity to make decisions about their own finances, needs a trusted person to be formally appointed by the Court of Protection as their Property and Finance Deputy. A formal application is required to the Court of Protection because the person lacking capacity is a protected party and therefore the only way to obtain formal authority to access and manage their finances (including selling/buying property) is with a Court Order.
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If you are unsure as to whether you can assist a family member with their finances, and/or if you would like more information about applying to the Court of Protection to be appointed as a Property and Finance Deputy, please contact our specialist team. Amy Chater, Court of Protection partner, can also act as Professional Deputy if required; a Professional Deputy may be required if the person has high value and/or complex finances which require management or in cases where there is no one else available, willing or able to do the role.
FAQs about property and finance decisions
A Property and Finance Deputyship legally authorises the named Deputy to make financial decisions on behalf of the person who lacks mental capacity, who is named in the Deputyship Order. A Deputy should be aged 18 or over with no history of bankruptcy or criminal convictions. A person can have more than one Deputy appointed. If there is more than one they can be appointed ‘jointly’ (they must make all decisions together) or ‘jointly and severally’ (decisions can be made by all or only one of them).
The Deputy will need to check the scope of the Deputyship Order to confirm what they are authorised to do but generally they will be legally authorised to make standard day to day financial decisions which include paying bills, accessing and using the person’s bank accounts for the person’s benefit, insuring property, applying for benefits, to name a few examples. If the Deputy wants to sell the person’s property, authority to do this usually has to be specifically requested, either when first applying for the deputyship or as a one-off application; it is often specifically excluded from the standard deputyship authority. The Deputy will also need to consider how the property is held first e.g in the person’s sole name or maybe as tenants in common with another, in case a different type of Court of Protection application is required. The Deputy may require specific authority to purchase a property. Anything else out of the ordinary is also likely to require specific authority from the Court of Protection e.g making a large monetary gift/loan or entering into a mortgage or equity release on the person’s behalf.
A Property and Finance Deputy is not legally authorised to make health or welfare decisions for the person. They will still usually be involved in these decisions though to an extent. For example, whilst they have no formal authority to decide where someone should live, they have authority to confirm if the person can afford the costs of the proposed living arrangements. If you have any concerns or questions relating to health or welfare decisions for a person, please read our leaflet or contact our specialist team.
First you need to establish if the person lacks mental capacity to make financial decisions themselves; one of the main principles of the Mental Capacity Act 2005 is that “a person must be assumed to have capacity unless it is established that he lacks capacity”. It is therefore fundamental that capacity is checked first and that presumptions aren’t made based on diagnoses/behaviour/appearance e.g dementia or a brain injury. The person’s GP or social worker (if they have one) or another medical practitioner may be able to carry out the assessment and provide the results in a format for the court (COP3 form) There are also many good independent mental capacity companies around to choose from.
It is also worth double checking that the person doesn’t already have a registered power of attorney. You can complete an enquiry form via the Office of the Public Guardian (OPG) to check this. Please be aware that a person may have an older style Enduring Power of Attorney which hasn’t been registered which wouldn’t show on the OPG record.
If the person does lack capacity to make their own financial decisions, you will need to submit the COP3 evidence along with the application forms and an application fee of £371.
You should be aware that the Court of Protection is experiencing long delays and, at the time of writing, Deputyship Orders are taking on average 8-9 months to come through, and in some cases up to 12 months or more.
The court fee to apply for a Property and Finance Deputyship is, at the time of writing, £371. The fee is payable by the person lacking capacity so can be claimed back once the Deputy is appointed and has access to their funds. In some cases the fee can be reduced or dispensed with depending on how much money the person has and/or if they are in receipt of certain benefits. It is worth checking the government website for details on fee exemptions.
There is often a cost for the mental capacity assessment COP3. The cost can vary from £50 to £800 depending on who you use and the complexities. Again, this would usually be recoverable from the person’s funds.
If you would like to instruct our specialist solicitors to apply to the Court of Protection for your appointment (or appointment of Amy Chater as Professional Deputy), an estimate for our costs can be provided after an initial free consultation. Usually costs range from £1800- £3,000 plus VAT for a standard uncontested application. As with the other costs, the general position is that our costs are recoverable from the person’s funds.
If you would like to instruct us to apply for Amy Chater to be appointed as the Professional Deputy, please note that there will also be ongoing annual deputyship management charges after appointment, again payable from the person’s funds. Further details and bespoke cost estimates can be provided in advance of instruction.
You will first be advised by the Court that a Deputyship Order has been made. Before the Order is issued by the Court however, the Deputy needs to put in place a surety/security bond. The Court will usually provide details of how to do this, and options on who to use, in a letter. The security bond is an insurance to protect the finances of the person the Deputy is appointed for. It covers the person for any financial loss suffered as a result of a failure of the Deputy to adequately perform their duties. The amount of the bond generally depends on the level of assets the Deputy will be managing. It is usually an annual premium payable for the first 4 or 5 years of the deputyship but depends on the provider. The premiums are recoverable from the person’s funds.
There will also be a supervision fee payable to the OPG; the OPG is the supervising body assisting and supporting Deputies to carry out their roles. There will be a £100 assessment fee payable as a one off to the OPG and then an annual £320 general supervision (this is sometimes reduced in the 2nd year, particularly if the Deputy is managing less than £21,000) As with the Court application fee, exemptions or reductions may apply so it is worth checking if the person has low value assets and/or is on benefits so a request can be made for reduced fees.
Upon appointment you should be contacted by the OPG to run through your role and responsibilities and check if you have any questions. Again, due to delays and workload, there may be a delay before you are contacted. A visitor from the OPG can visit at any point therefore but should tell you in advance.
You will be expected to act in accordance with certain standards and to undertake (promise) to abide by the standards and follow set duties and responsibilities. You will have made these promises when you apply to the Court. Some include:
- To act in the person’s best interests;
- To make decisions only which the person cannot make themselves;
- To act with due care, skill and diligence as they would in conducting their own affairs;
- Not to allow their own personal interests to conflict with the persons;
- Not to use their position as Deputy for any personal benefit;
Every year you will need to submit a report to the OPG which details the financial spending for the year, any decisions made, how the person was involved and who else was involved in the decision making. It is important that you complete this report on time and with all the required information. You should also keep bank statements and receipts as well as any other important documents.
Our specialist solicitors are able to assist Deputies to complete the annual report if required. We can also provide bespoke advice to Deputies on their roles and responsibilities and/or if there are any specific queries or one-off court applications required. A cost estimate can be provided after an initial free consultation.
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