Deputyship and Financial Affairs

1. Using this Procedure

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

2. Identifying Support Needs

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

They lack capacity to do so; or
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.

Need to Know

If a person has capacity to manage their finances, but does have difficulty doing things like going shopping, withdrawing cash or paying bills, they may be interested in exploring a Carer’s Card account with their bank. This enables them to nominate a person they trust to receive a debit card linked to their account, that they can then use to make purchases, withdraw money or pay bills on the person’s behalf. For further information, see: Carer’s Card Accounts (Money Helpers website).

Need to Know

Another option people may want to explore is Sibstar. Sibstar is a flexible debit card and app that can support a person with dementia, learning disability or other cognitive impairment to manage everyday spending safely. It allows the person, a family member or carer to switch cashpoint withdrawals off and on, set daily or monthly spend limits, add top ups, show real-time card use notifications and freeze/unfreeze the card if it is lost or stolen. For further information, see: Sibstar.

3. Identifying Existing Support

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

Appropriate support is either:

An appointee;
A Deputy; or
An 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.

An Appointee

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:

Claiming all DWP benefits that the person may be entitled to;
Collecting all benefits into a designated account;
Reporting changes in circumstances; and
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.

A Deputy or Attorney

The role of a Deputy

When a person lacks capacity to make decisions for themselves, a Deputy is a person or organisation appointed by the Court of Protection to:

Make general or specific decisions as set out by the Court; and
Take steps to implement those decisions.

There are 2 types of Deputy:

Property and Affairs; and
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, but are not limited to:

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

A Deputy 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, or where there are 2 Deputies able to make the decision and authorised to do so severally (independently of each other).

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

The role of an Attorney

A Power of Attorney is somebody appointed by a person with capacity to:

Make general or specific decisions as set out by the person; and
Take steps to implement those decisions; when
The person lacks capacity to make that decision for themselves (see note below).

Note: A Lasting Power of Attorney for Property and Affairs can also be used to help the person manage their finances before they lack capacity, as long as it has been registered with the Office of the Public Guardian.

An Attorney has a legal requirement to act on matters they have been given the authority to act upon, and cannot delegate this to anyone else. The only exception to this is where there are multiple Attorneys and the Lasting Power of Attorney authorises them to make decisions severally (independently of each other).

Establishing if there is a Deputy or Attorney

Sometimes there will be evidence already recorded on Local Authority systems that confirms there is a Deputy or Attorney.

In all other cases, the sealed Lasting Power of Attorney or Court Order should be requested as evidence.

If this cannot be provided you should complete form OPG100 to request confirmation of the person's legal status from the Office of the Public Guardian.

Once you have established there is a Deputy or an Attorney you must be satisfied that they are authorised to provide the support that the person needs with their property and affairs at that time. This information will be set out in the Lasting Power of Attorney or Court Order. If you are unsure of the authority given, seek legal advice.

If they are authorised to make the decision that needs to be made, they An Attorney or Deputy should make arrangements do so (unless, in the case of Deputies only the Court of Protection has given them permission to delegate this to someone else).

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

4. Concerns About an Appointee, Deputy or Attorney

Safeguarding Responsibilities

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

An Appointee

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.

A Deputy

If you have any of the following concerns about a Deputy you must raise this with your line manager, and steps should be taken to notify the Office of the Public Guardian (OPG);

Declining to act when they have the authority to do so;
Asking another person to act on their behalf (unless this other person is a jointly appointed Deputy with the authority to make decisions severally); or
Making a decision that is not in line with the Court Order or the principles of the Mental Capacity Act 2005.

The OPG will investigate the concerns and determine whether the Deputyship should be revoked.

If an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.

Note: A Deputy can make a decision that you do not agree with so long as they are acting within the authority of the Court Order and have applied all of the 5 statutory principles of the Mental Capacity Act 2005, including the Best Interests principle.

Need to know

Although the Office of the Public Guardian is responsible for monitoring existing Deputyships, the Court of Protection can also revoke the appointment of a Deputy.

An Attorney

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

Declining to act when they have the authority to do so;
Asking another person to act on their behalf (unless this other person is a jointly appointed Attorney with the authority to make decisions severally); or
Making a decision that is not in line with the principles of the Mental Capacity Act 2005.

The OPG will investigate the concerns and determine whether the Lasting Power of Attorney should be revoked.

If the person lacks capacity and an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.

Note: If the person about whom the decision relates still has mental capacity, they may choose to revoke the Lasting Power of Attorney and are permitted to do at any time.

Need to know

Although the Office of the Public Guardian is responsible for monitoring Lasting Powers of Attorney, the Court of Protection can also revoke a Lasting Power of Attorney or (where there are multiple Attorneys) revoke the authority of a Attorney to act.

5. Exploring All Available Options

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 19B - Fixed Costs and Deputy Renumeration in the Court of Protection.

Already a Deputy for Property and Affairs

If there is already a Deputy for Property and Affairs 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.

If the Deputy declines to approach the Court, you should raise this with your line manager and take steps to notify the Office of the Public Guardian (OPG). The OPG will investigate the concerns and determine whether the Deputyship should be revoked.

The Local Authority can only make a Deputyship application if the existing Deputyship is revoked. However, if an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.

Need to know

Although the Office of the Public Guardian is responsible for monitoring existing Deputyships, the Court of Protection can also revoke the appointment of a Deputy.

Already a Lasting Power of Attorney for Property and Financial Affairs

If the person has capacity

If there is an Attorney but they are not authorised to act on the matter in hand, they should speak with the person to see if they are willing to extend the remit of the Lasting Power of Attorney to include the current matter.

As the person has capacity, this is their choice.

If the person lacks capacity

If the person lacks capacity and there is an Attorney but they are not authorised to act on the matter in hand, discuss with the Attorney whether they are able to apply to the Court of Protection for the Lasting Power of Attorney to be revoked and a Deputyship granted.

If the Attorney declines to approach the Court, you should raise this with your line manager and take steps to notify the Office of the Public Guardian (OPG). The OPG will investigate the concerns and determine whether the Lasting Power of Attorney should be revoked.

The Local Authority can only make a Deputyship application if the existing Lasting Power of Attorney is revoked. However, if an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.

Need to know

Although the Office of the Public Guardian is responsible for monitoring Lasting Powers of Attorney, the Court of Protection can also revoke a Lasting Power of Attorney or (where there are multiple Attorneys) revoke the authority of a Attorney to act.

Already an Appointee

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

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

No existing support

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 appropriate 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.

6. Making a Property and Affairs Deputyship Application

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.

The Application Process

Property and Affairs 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:

COP1; and
COP1A; and
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 (a typed signature is acceptable).

Additional Information

In addition to the COP1, COP1A and the COP3 you should provide copies of any additional relevant evidence, for example:

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

You should only:

Submit evidence prepared by yourself, or the Local Authority; unless
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.

Notifications

Notifying the person the application is about (P)

Before the application is submitted, the Court requires that the person the application is about (P) is served formal notification. If you are asked to serve this formal notice, this should be done using form COP14PADep. The person has 14 days to acknowledge the notification, provide their wishes and feelings regarding the application, and confirm whether they agree with the order that is going to be asked for. After this time the Court will assume their agreement to it.

Notifying interested parties

Before the application is submitted, 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. If you are asked to serve this formal notice, this should be done using form COP15PADep. Each notified person has 14 days to acknowledge the notification and confirm whether they agree with the proposed order being made, after this time the Court will assume their agreement to it.

7. After Making the Application

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

Note: Property and Affairs Deputyship applications can take up to 6 months (sometimes longer), depending on the capacity of the Court of Protection.

In the interim period you should:

Take necessary steps to ensure the person's finances are safeguarded;
Respond to any enquiries from the person/their representative about progress; and
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).

If the Deputyship is granted

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:

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

If the Deputyship is declined

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.

8. Reviewing the Need for Deputyship

When and how to review

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:

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

Changes in circumstances

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

Rate of benefit; or
Overall entitlement to a benefit.

Changes in circumstances include:

The accumulation of funds above permitted thresholds;
Changes in illness or disability;
Changes in mental capacity;
Change in address;
Change in marital status;
Change in income.

If the review indicates a change in circumstances you should:

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

9. Ending Deputyship

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

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

Discuss this with your line manager; and
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:

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

10. If the Person Dies

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

Cease making regular expense payments to the person (or their nominated representative); and
Cease making financial contributions to the Local Authority; and
Notify the Court of Protection; and
Notify 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.