When a party fails to disclose assets in divorce proceedings, the courts are entitled to draw appropriate inferences from the non-disclosure. This was demonstrated in a recent case in which the Family Court described the husband's conduct of the...
I have been appointed to act as Deputy for an individual who lacks mental capacity – what next?
The team at T G Baynes understand how stressful the process of obtaining a Court of Protection deputyship order can be and it is not uncommon for a deputy, once appointed, to feel overwhelmed by what lies ahead.
The Office of the Public Guardian’s guide ‘How to be a deputy’ helpfully sets out the following priorities for a newly appointed financial deputy:
- Get to know the client
- Arrange your deputy/security bond
- Review and check your court order
- Let people know you have been appointed as deputy
- Secure the client’s assets and set up deputyship accounts
- Pay any deputy fees
- Keep a record of your decisions and financial transactions
- Write your deputy report
1. Getting to know your client
If the person who lacks capacity (the client) is a relative or close friend it is likely that you will already know a lot about them. Completing the COP1A form as a part of your application is also going to have helped you to understand the client’s current financial situation.
In some cases the client may not have been known to you personally prior to making the application and it is therefore important for you to start getting to know them straight away. This might be through speaking to family members and close friends or those who have been providing care.
There may also be times when the client has the capacity to make some financial decisions themself and if so, you should make a note of the kinds of decisions which they make. If the client does not have capacity then it is sensible to try and establish the kinds of financial decisions which they have made in the past for example, did they regularly make gifts to charity?
One of the key things to remember is that any financial decisions which are made must be made in the client’s best interests. It is therefore important for you to try and understand, as far as is possible, the client’s likes and dislikes together with their wishes and beliefs to aid in the decision making process.
2. Arrange your deputy/security bond
For more information on what a deputy/security bond is please refer to our information sheet ‘What is a deputy bond’ which can be located within the elderly client section of our website.
The Court of Protection will not issue the Order appointing you as deputy until the bond has been put in place.
3. Review and check your court order
Once you have received the Order appointing you as deputy you will need to ensure that you fully understand the contents and the authority which you have been granted.
It is also important for you to check that there are no typographical errors such as names which have been spelt incorrectly. If the Order is incorrect in any way then you will need to contact the Court of Protection to arrange for the necessary amendments to be made.
4. Let people know you have been appointed as deputy
When you are in receipt of the Order you will need to notify all financial institutions with which the client has accounts that you have been appointed. This is commonly referred to as ‘registering the deputyship’.
Each institution will have its own procedure for registering the Order against the account and noting your role as deputy. You may prefer to contact the organisations customer service department or attend a local branch to confirm the procedure that needs to be followed. You will need to produce either an original or certified copy of the Order together with your personal identification documents.
5. Secure the client’s assets and set up deputyship accounts
Once you have been registered on the client’s accounts and have a full understanding of the assets within their estate and their income it is sensible to keep a central record for your own information. You may wish to do this on a spreadsheet so that it can be easily updated in the future.
You should also review all existing standing orders, direct debits and payments to ensure that they are still required and you should cancel those that are no longer needed.
You must always keep the client’s money separate from your own so as not to confuse matters. You may want to ask the account provider to transfer the accounts into your name as deputy for the client or alternatively you may want to open a new deputyship account.
6. Pay any deputy fees
The Office of the Public Guardian will charge a one off deputy assessment fee of £100 which will determine the level of supervision that you will require. The annual supervision fee of either £320 or £35 is payable on an annual basis depending on the level of supervision which has been deemed appropriate.
The deputy/security bond will also need to be renewed each year, and the Bond Provider will write to you in advance to remind you of this.
All charges which relate to the deputyship are payable from the client’s assets.
7. Keep a record of your decisions and financial transactions
You should start to keep a record of all decisions which you make and all financial transactions which take place from the moment that you start acting. If you consult others regarding financial decisions for example, a financial advisor, then this should also be recorded. These records will be needed when you submit your deputy report to the Office of the Public Guardian each year.
You will need to keep receipts, bank statements, invoices and correspondence regarding financial transactions as far as is possible. If the client is given a personal allowance then you do not need to keep account of the client’s own spending rather you should just note this in your accounts as ‘personal allowance’.
8. Write your deputy report
A deputy report form must be submitted to the Office of the Public Guardian on an annual basis for review. The Office of the Public Guardian will write to you to confirm when the report is due.
The information contained within the deputy report will be used to check the deputy’s involvement with the client and to ensure that the client’s funds are being used in their best interests. If the Office of the Public Guardian has any concerns about the report which has been filed they may write to you to request further information or send a Court Visitor to meet with you.
If you have been appointed as a deputy and require advice regarding your duties and responsibilities contact one of our Court of Protection advisors today. However, please note that the Court takes the view that a Deputy should be able to carry out the day to day operation of the Deputyship without needing professional assistance, so may require you to pay personally for legal services dealing with matters which you could deal with yourself.