Following our recent article regarding Personal Welfare Deputies, we thought it would be appropriate to follow on from this with an explanation of the role of a Deputy for Property and Financial Affairs, and the common misconceptions of what authority this brings with it.
What is a Deputy and who can be appointed?
Before we dive into what responsibilities comes with the role, we must first establish what it means to be a Deputy, and who can be appointed.
A Deputy is appointed by the Court of Protection when a person ("P") no longer has the capacity to make their own decisions regarding the finances or health.
This can be a close friend or relative, or even a professional with experience in managing a client's finances. It is sometimes deemed more appropriate for a professional to be appointed in cases where P has substantial financial wealth as they are likely to have more experience in dealing with larger financial decisions; furthermore, a professional can be appointed where P has no family or friends that can take on the role.
Given the difference between P's financial affairs and the personal welfare, the Court has split the role of a Deputy in to two, as similarly done with Lasting Powers of Attorney, and therefore a Deputy can be appointed to manage each separately.
Responsibilities of a Deputy
The overarching approach to a Deputies role is that any decision they make, must be in the best interests of P.
The Court Order appointing the Deputy to P will set out the powers, and constraints of such, awarded to the Deputy. This usually includes the ability to take control of P's property and exercising the power of management and investment; however, this power is usually restricted with regards to any freehold/leasehold property that P may own, which specific authority must be sought from the Court to deal with. The Court's authority must also be sought for any large gift or expenditure in any event.
As part of your role as Deputy, you must ensure that you also take steps to secure P's assets and investments, as this is in their best interests to do so. This involves taking steps to ensure that if they own any property, such as a house, that this is safe, secure, and insured. Depending on whether P resides at the property, there may be conditions on the insurance such as that the property be visited at least once a month, or that certain work be undertaken to prevent any damage, such as draining the pipes to prevent water leaks, especially over the winter months.
Given that the Court are providing the Deputy with a wide authority, they do impose that the Deputy make regular reports to the Office of the Public Guardian to ensure there is accountability and transparency on behalf of the Deputy. This involves the Deputy reporting on how much money has been spent, and on what, and to disclose any important decisions that they made.
Misconceptions of being appointed as Deputy
Just because the Deputy has been given the authority to manage P's finances, or make decisions about their personal welfare, this does not mean that they have ultimate autonomy to make every decision on behalf of P.
As mentioned above, a Deputy cannot make any large gifts on behalf of P, even if this is in keeping with what P had done previously; the Court's authority must be sought. Furthermore, the Deputy does not have the power to change P's Will; there is a separate level of capacity required to change their Will, which is different to that of being able to manage their own finances, and therefore this does not fall under the same authority. To change P's Will, this involves a separate application to the Court, on different grounds, called a Statutory Will.
Another misconception that we see on a regular basis, especially from lay Deputies, is that they hold the funds on P's behalf, in their own name. P's funds must be kept completely separate from the Deputies, and from anyone else's. We see it on numerous occasions where P's money has been left in a joint account with their partner, however, this must be separated to ensure that funds do not become mixed, and so that the Court can clearly see what P's money has been spent on.
Our Court of Protection Department is headed up by Lin Whitehead; one of two Panel Deputies for Norfolk & Suffolk. Lin has a wealth of experience in both managing clients finances, and in preparing applications on behalf of close family/friends who wish to be appointed as Deputies. If you are either looking to appoint someone, need assistance in preparing the application forms, or need advice regarding your role as Deputy, we are happy to assist.
To find out more, contact us on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham and Sheringham offices.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.
