Managing the affairs of someone who has lost mental capacity

If your loved one has lost mental capacity, they will need assistance with their finances.

Where they have already prepared a registered Property and Financial Affairs Lasting Power of Attorney (or an old Enduring Power of Attorney), their attorneys will have the legal authority to deal with their finances.

If there is no power of attorney in place, you may need to apply to the Court of Protection to become a property and financial affairs deputy.

How can Timbrell Law help?

If you are concerned about a loved one and their ability to look after their affairs, we can help by:

  • preparing an deputyship application; and
  • providing advice to the proposed deputies to help them better understand their role.

For further information about caring for someone who has lost or is losing capacity, visit our blog.

Court of Protection – the basics

What is the Court of Protection?

The Court of Protection deals with the affairs of people who have lost mental capacity, either by making financial or welfare decisions for them or by giving another person (i.e. a deputy) the authority to do so.

The most common application to the Court of Protection is to appoint a deputy to manage the financial affairs of a person who lacks capacity.

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Who can be a deputy?

You can only be a deputy for a person who lacks capacity if you are over the age of 18.

Ideally, the deputyship application should be made by someone who knows the person who has lost mental capacity well, understands their wishes and can involve them as much as possible in making decisions — for example, a family member or close friend.

In any event, before deciding to make an order, the Court will look at the suitability of the proposed deputy.

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What are the duties of a deputy?

When making decisions as a deputy, you must act in accordance with the principles of the Mental Capacity Act and the accompanying Code of Practice. You can find and view the Mental Capacity Act Code of Practice at www.gov.uk/opg/mca-code.

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What decisions can I make as a deputy?

The Court of Protection will decide what powers are appropriate and set these out in the deputyship order.

If you are acting as a deputy, you must take care not to exceed your authority. With that in mind, you may need to go back to the Court of Protection to seek further permissions. For example, you will generally need additional authority to make a loan on behalf of a person who lacks capacity, to make large gifts or use the person’s funds to support another.

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Should I keep records while acting as a deputy?

Yes, you must keep a record of all dealings and transactions made on behalf of the person who lacks capacity. Papers to be retained should include copies of all bank statements, contracts, receipts of purchases and any correspondence that you have sent as deputy. You will need this information to complete the annual deputy report.

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How do I apply to the Court of Protection to be a deputy?

To apply to be a deputy, you need to complete a paper application and obtain a capacity report confirming the loss of mental capacity. The paperwork is very detailed and can take a long time to complete.

If you decide not to seek professional advice, you must be confident about the order you are asking the Court to make and what decisions you may need to make in the future. The Court will not grant you more powers than you have requested.

We can help:

  • assess whether a person lacks capacity and if a Court application is necessary;
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  • work with you to prepare the application;
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  • prepare instructions for a capacity report; and
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  • guide you through the Court process.
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If you live further afield, we would still be happy to help. Please get in touch today for our online services.