Elizabeth Metcalfe Senior Associate
Managing affairs for someone else
When an individual lacks the mental capacity to manage their own affairs due to illness or an unforeseen accident or injury, a representative/s needs to be appointed who can make decisions regarding their health, finances and property.
If the person has created a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) prior to their lack of capacity, the person/s appointed as their attorney can make certain decisions on their behalf. If they haven’t created an LPA or EPA, then an application will need to be made to the Court of Protection seeking the appointment of a Deputy to manage their affairs.
An ageing population
The UK has an ageing population and there are now over 15.5 million people aged 60 or over, making up 23% of the UK population. People are living longer than ever before and by 2041, it is expected that there will be over 3 million people aged 85 or over – more than double the number that there are today*. In July 2020, there were 4 million registered LPAs with the Office of the Public Guardian (‘OPG’). The number of registered LPAs has increased in recent years - but there remains a large proportion of the population without an LPA in place.
If someone loses capacity without a valid LPA, a Deputy will need to be appointed by the Court of Protection to manage their affairs on their behalf. There are two different types of deputyship: a Property and Financial Affairs Deputyship; and a Personal Welfare Deputyship.
Property and Financial Affairs Deputyship
A Property and Financial Affairs Deputy is appointed where a person (P) lacks the mental capacity to manage their own property and financial affairs. The Deputy must make decisions in P’s best interests and duties may include setting up direct debits and paying for any care costs from P’s bank account. The Deputy will also be able to collect P’s income and any benefits, operate and manage bank accounts and investments for P’s benefit, deal with any tax affairs and sell property.
Usually, the Court of Protection will not appoint a Deputy if the person has already appointed an attorney through an EPA or LPA.
Personal Welfare Deputyship
A Personal Welfare Deputy is appointed when P cannot make decisions about their health and care matters. This includes decisions about what care is given, where the care is received and types of medical treatment that should be administered, including life-sustaining treatment.
Who can apply to be a Deputy?
The Court of Protection prefers to appoint a family member or friend rather than a professional advisor but there are of course exceptions, for example, when there are no family or friends suitable to manage the affairs of the person who lacks capacity. Professional deputies will charge for their time, and their fees are normally paid out of P’s finances.
For further information on making a Deputyship application or to discuss your plans for the future, including Wills and Tax Advice, please contact our Private Client team on 0117 405 8980.
*Source: Office of National Statistics