Deputyship and Financial Affairs

Amendment

This procedure was updated in September 2022. Information about notifying interested parties has been added to Section 6, Making a Deputyship Application. This information explains the Court’s requirement for 3 respondents.

September 22, 2022

This procedure should be used by social care practitioners when a person may (or does) need support to manage their property or affairs.

It should be used alongside the Finance Management and Management of Client Funds (Safe Custody) Accounts for Service Users Policy. This can be found in the Local Resources section.

A person can need support to manage their property or affairs because either:

  1. They lack capacity to do so; or
  2. They have a physical disability that prevents them from being able to do so.

Determinations about mental capacity must be made through a process of mental capacity assessment.

Guidance on assessing capacity can be found in the Mental Capacity Act 2005 Resource and Practice Toolkit.

You must explore whether the person is already receiving the support they need before taking any further action.

Appropriate support is either:

  1. An appointee;
  2. A Deputy; or
  3. A Donee of a Lasting Power of Attorney.

If appropriate support is in place and there are no Safeguarding concerns, there is no need for the Local Authority to take any further action.

The role of an appointee

An appointee is a person appointed by the Department for Work and Pensions (DWP) to be responsible for making and maintaining any benefit claims on behalf of a person who cannot do so because they either lack capacity or their physical disability prevents them from being able to do so.

The appointee role involves:

  1. Claiming all DWP benefits that the person may be entitled to;
  2. Collecting all benefits into a designated account;
  3. Reporting changes in circumstances; and
  4. Managing and spending benefits in the Best Interests of a person who lacks capacity.

Establishing if there is an Appointee

The Department for Work and Pensions (DWP) write to somebody when they become an appointee, and an appointee should be able to show you this letter as evidence that they have the authority to act. If this is not available they should be able to contact the DWP by telephone and ask them to confirm this verbally.

The role of a Deputy

A Deputy is a person or organisation appointed by the Court of Protection to:

  1. Make specific decisions as set out by the Court; and
  2. Take steps to implement those decisions; when
  3. The person lacks capacity to make that decision for themselves.

There are 2 types of Deputy:

  1. Property and Affairs; and
  2. Health and Welfare.

Note: This procedure relates only to Property and Affairs Deputies. For applications relating to Health and Welfare you should refer to the Court of Protection section of the Mental Capacity Act 2005 Resource and Practice Toolkit.

Some examples of things that a Property and Affairs Deputy can be authorised to do as part of their role include:

  1. Managing money;
  2. Claiming benefits and pension;
  3. Managing bank accounts and utilities;
  4. Managing debt;
  5. Buying and selling property (a further order must be sought to sell a property);
  6. Holding a tenancy;
  7. Management of property (e.g. carrying out maintenance work).

For further information, see Deputies in the Mental Capacity Act 2005 Resource and Practice Toolkit.

The role of a Donee of a Lasting Power of Attorney

A Power of Attorney is somebody appointed by the person to;

  1. Make specific decisions as set out by the person; and
  2. Take steps to implement those decisions; when
  3. The person lacks capacity to make that decision for themselves.

A Deputy or Donee of a Lasting Power of Attorney has a legal requirement to act on matters they have been given the authority to act upon unless the Court of Protection has given them permission to delegate this to someone else.

Establishing if there is a Deputy or Donee of a Lasting Power of Attorney

Sometimes there will be evidence already recorded or available in the person's home that confirms there is a Deputy or Donee of a Lasting Power of Attorney.

If this cannot be verified either way you should complete form OPG100 to request this information from the Office of the Public Guardian.

Once you have established there is a Deputy or a Donee of a Lasting Power of Attorney you must be satisfied that they are authorised to provide the support that the person needs with their property and affairs.

If they are authorised they should make arrangements do so unless the Court of Protection has given them permission to delegate the role to someone else.

If there is a Deputy or Donee of a Lasting Power of Attorney but they are not authorised to act on the matter in hand see Section 5, Exploring all Available Options.

In all cases where the level of risk to the person, their property or financial affairs warrants it a safeguarding concern should be raised.

Unless the appointee intends to relinquish the appointeeship you should, wherever practicable try to support them to meet the requirements of the role before taking any other action.

If it is not appropriate to provide support (or if the provision of support has not enabled the appointee to meet the requirements of the role) you should speak with your line manager about whether a Deputyship application may be appropriate.

Declining to act

If a Deputy is declining to act when they have the authority to do so, or has asked another person to act on their behalf you must raise this with your line manager, and steps should be taken to;

  1. Notify the Office of the Public Guardian; and
  2. Take the matter to the Court of Protection for a determination.

Concerns about decisions made

A Deputy can make a decision that you do not agree with so long as they have applied all of the 5 statutory principles of the Mental Capacity Act 2005, including the Best Interests principle.

If you are concerned about the manner in which a Deputy has made a decision you should raise this with your line manager and take steps to notify the Office of the Public Guardian.

If you have any of the following concerns about a Donee of a Lasting Power of Attorney you must raise this with your line manager, and steps should be taken to notify the Office of the Public Guardian;

  1. Declining to act when they have the authority to do so;
  2. Asking another person to act on their behalf; or
  3. Making a decision that is not in line with the principles of the Mental Capacity Act 2005.
Need to know

The Local Authority is permitted to charge the person fixed costs for the services it provides as a Deputy. This includes costs incurred during the initial application, annual management fees and annual fees to prepare reports for the HMRC. Making an application for the Local Authority to act should therefore be the last resort after all other options have been ruled out.

Further information about the fees charged for providing a Deputy service, see Practice Direction B-Fixed Costs in the Court of Protection.

If there is already a Deputy but they are not authorised to act on the matter in hand you should discuss whether they are able to approach the Court of Protection to seek an addition to the original order of authority that was made.

An application for the Local Authority to act should only be made when the Deputy is not able to approach the Court of Protection (or declines to do so), or where there is likely to be a significant delay in them doing so.

If there is a Donee of a Lasting Power of Attorney but they are not authorised to act on the matter in hand you should discuss with them whether they are able to either:

  1. Apply to act as an appointee (if the matter is within the remit of an appointee); or
  2. Make an application to the Court of Protection for Deputyship.

An application for the Local Authority to act should only be made when the Donee is not able (or declines to) undertake either of the above steps, or where there is likely to be a significant delay in them doing so.

You should discuss with an existing appointee whether they are able to make an application to the Court of Protection for Deputyship when:

  1. The person lacks capacity; and
  2. The nature of the support they need falls outside the remit of the appointee role.

Step 1

Explore whether there are any family members or friends who may be able to apply to act.

Step 2

If so, discuss this possibility with them and establish if they are able to do so. During any discussion you should provide good information about the relevant role. This is set out in section 3 above and the person can also look at the government website.

If not, in the case of Deputyship only consider whether there is a Solicitor involved with the person or their family who may be able to act and if so, approach them.

Step 3

If they need or request it, allow the family member or friend some time to think things over or access independent advice before making a decision.

Step 4

If they decide to proceed, consider any support they may need to make the application. For example, this could be provided by an advocate or voluntary organisation. Do not close the case until you know the outcome of their application and are satisfied that the person's finances are safeguarded.

If they decide not to proceed find out why, and explore whether there are any barriers that can be overcome. For example they may not have understood the role and further information could assist, or they may find the process of applying daunting.

Need to know

Remember: An application for the Local Authority to act should be the last resort after all other options have been ruled out.

Deputyship applications should be made in line with local processes and requirements.

You will normally be asked to complete the following forms to support the application:

  1. COP1; and
  2. COP1a; and
  3. COP3.

In certain circumstances, a witness statement may also be required. This should be completed using COP24.

COP3

If you have been requested to arrange for a medical practitioner to complete COP3 you should take steps to do so, using available local processes.

In all other cases you should complete the COP3 using the information from the mental capacity assessment that determined that the person lacked capacity in relation to property or affairs.

The COP3 must be a signed paper original.  The Court of Protection does not accept copies or digital signatures.

In addition to the COP1, COP1a and the COP3 you should provide copies of any additional relevant evidence, for example:

  1. A needs assessment;
  2. An OPG100 response from the Office of the Public Guardian;
  3. Details of any person currently supporting the person with their finances, and why they are not making the necessary application.

You should only:

  1. Submit evidence prepared by the yourself, or the Local Authority; unless
  2. The relevant organisation or person has given consent for it to be shared (for example the ICB).

You may also be required to attend the Court of Protection if there is an objection to the application and the Court orders that an attended hearing takes place.

The Court requires that a minimum of three interested parties are served formal notice of the application as respondents. This could be the person’s family member, friend, advocate, GP etc. It is important that you identify those people and that their contact details and relationship to the person are included in the application form.

You should make appropriate arrangements to monitor the outcome of the application.

Note: Deputyship applications can take up to 6 months, depending on the capacity of the Court of Protection.

In the interim period you should:

  1. Take necessary steps to ensure the person's finances are safeguarded;
  2. Respond to any enquiries from the person/their representative about progress; and
  3. Notify the team managing the application of any change in the person's circumstances that may affect the outcome (for example if they regain capacity or a family member decides to apply to act).

At the point that the Court Order is made you can proceed to close the case, unless you need to monitor things or undertake any other Care and Support function.

You must ensure that before closing the case the right support is in place on the Care and Support Plan to enable the person to manage and use any payments they will be receiving safely. Wherever possible support should be:

  1. Provided from the person's informal networks of support; or
  2. As part of an existing package of support; and
  3. Focus on building the person's skills and ability to manage the monies independently in the future.

If the Court of Protection declines the application you must take steps to support the person to access the support they require through other means.

Social work practitioners should review the on-going need for Deputyship at the same time as any statutory Care and Support Plan review, or whenever there is evidence to suggest that alternative arrangements may be more appropriate.

Some key questions to ask include:

  1. Are the arrangements working from the person's perspective?
  2. Have there been any changes to the person's circumstances that might affect their benefits? (see below)
  3. Have there been any changes in the person's capacity/ability to manage their own money?
  4. Is there another person who would be more appropriate to act?
  5. If the person receives support to manage cash is the current level of support being provided still the least restrictive?
  6. Is the person being supported to make their own decisions and choices about spending their money, wherever this is possible?
  7. If the person receives cash is this being used appropriately?
  8. Are there any new risks to mitigate?
  9. Is Deputyship still required?

The Local Authority is required to report any changes in the person's circumstances that could have an impact on their:

  1. Rate of benefit; or
  2. Overall entitlement to a benefit.

Changes in circumstances include:

  1. The accumulation of funds above permitted thresholds;
  2. Changes in illness or disability;
  3. Changes in mental capacity;
  4. Change in address;
  5. Change in marital status;
  6. Change in income;
  7. Hospital admission affecting benefits.

If the review indicates a change in circumstances you should:

  1. Notify the team managing the Deputyship as soon as possible after becoming aware; and
  2. Provide them with any evidence to support this (having regard for confidentiality).

Unless a person or a Deputy dies all Deputyships can only be revoked by the Court of Protection.

If you believe that a Deputyship is no longer appropriate you should:

  1. Discuss this with your line manager; and
  2. If in agreement, discuss with the team managing the Deputyship.

They will determine, on the basis of the information provided whether they should take steps to apply to the Court of Protection.

An application to the Court of Protection to revoke Deputyship should always be made when:

  1. A person regains capacity; or
  2. Someone from the person's informal network has been identified, agrees to assume the role and is appropriate to do so.

Where a corporate deputyship is to be revoked and transferred to another individual, this process should be smooth and simultaneous to ensure minimal disruption for the person.

The team managing the Deputyship should be notified as soon as possible after a person dies so that they can:

  1. Cease making regular expense payments to the person (or their nominated representative); and
  2. Cease making financial contributions to the Local Authority; and
  3. Notify the Court of Protection; and
  4. Arrange for any benefit payments made since the time of death to be repaid to the DWP.

They will also ensure that any monies held in the person's name are released in line with an executor's request or solicitor's instructions.

Last Updated: September 22, 2022

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