My family member or friend lacks the capacity to manage their money, what should I do?

What is Deputyship?

A deputy is someone who can make decisions on behalf of someone else who lacks the mental capacity to make them for themselves; they are appointed by the Court of Protection. Ideally, someone who lacks capacity will already have signed lasting powers of attorney to manage their affairs if anything happened to them. If this wasn’t possible before the person lost capacity, or isn’t the case, then a trusted person can apply to the Court of Protection to take deputyship of the incapacitated person’s affairs.

What is a lay deputy?

A lay deputy is a non-professional person who manages finances, often for a loved one. The role of a deputy operates in a similar way to someone appointed as a deputy by a lasting power of attorney. However, the key differences include:

• Appointed by the Court of Protection;
• Required to comply with a number of duties; and
• Required to report annually detailing all income, expenditure and assets.

What would I need to do as a deputy?

A financial deputy will look after monetary issues, such as paying bills and ensuring finances. If needed to fund care, a deputy can also sell the property of the person lacking capacity with the specific permission of the Court of Protection.

If you are appointed as a deputy, you are responsible for helping make decisions or making decisions solely for someone else. You must not assume that their mental capacity is the same for every decision, so for every decision, you must consider their ability to make the decision. The court order will explain the parameters of your role and this would supplement the duties set out in the code of conduct from the Mental Capacity Act 2005.

As a deputy, you will need to complete an annual account that records the decisions you have made, so it’s important to keep records, receipts and bank statements. If there is a reason you can no longer act as a deputy, a new deputy can be appointed by way of another application to the court. Similarly, if the person regains capacity, you will need to apply to the court to dispense the deputyship order in place, providing supporting medical evidence. There is information online regarding duties and requirements which is published by the Office of the Public Guardian.

What is the process to apply?

If you apply to the Court of Protection, there will be an assessment of the mental capacity of the person you have concerns for, which will incur costs. If the Court finds that the person does lack the capacity to make decisions, it will then decide whether to issue a court order.

The application process will involve finding out as much as possible about the person in question, talking to family, friends and other interested parties, such as carers, social workers and medical professionals. The process is now often completed through an online portal for straightforward applications but can also be filed by post.

Applications can be complicated as there are several forms which must be completed, each requiring different information. It is also necessary to serve the application upon the person lacking capacity and notify at least three individuals who should be made aware of the application.

How can we help?

Applying to be appointed as a lay deputy can be a very confusing process. At Anthony Collins, we have a number of solicitors who are able to guide you through the process of applying to the court to become a lay deputy, helping you to complete the relevant forms and saving you time by gathering information and preparing documents on your behalf.

For more information

For more detail on how we can assist, information relating to fees and timescales or to seek advice please contact us on 0121 200 3242 or at COPenquiries@anthonycollins.com.

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