Deputies and appointees

The Financial Protection Team

The main purpose of Financial Protection is to assist clients who are unable to manage their own financial affairs and where nobody (friends/family) has been identified as being able to take on this role for them. The clients must lack capacity around managing their own finances or be subject to financial abuse.

It should never be assumed that a person is incapable of managing Property and Affairs (Finances) just because they have a mental illness or learning difficulty. The introduction of the Mental Capacity Act (2005) includes 5 key principles which must always be born in mind when working with people who lack capacity.

The Mental Capacity Act 2005 [external link]

The level of financial assistance can vary depending on the individual’s circumstances and can range from payment of bills, care fees, investigating and securing capital amounts, arranging sale of property, and investing capital in their best interests.

Appointeeship

When a person is unable to manage their financial affairs due to mental incapacity and the only money they are in receipt of is state benefits (eg; Pension, Pension Credit, Employment Support Allowance, Job seekers Allowance, Universal Credit). For more information and details of how to apply to become Appointee please visit www.gov.uk[external link].

As Appointee you will not have the authority to look after any other aspect of finances such as:

  • property,
  • savings,
  • investments,
  • private/occupational pensions
  • Any other assets/income

If a person does have any of the above and they lack capacity to look after their affairs then a Deputy Application will need to be made. Please see below for more information.

Deputyship

When a person lacks capacity to look after their own affairs, the Court of Protection has the power to appoint a deputy where there is no Lasting Power of Attorneys or Enduring Power of Attorneys in place.

An application for Deputyship can be made if the person to whom the application relates lacks the mental capacity to make specific decisions. There are 2 types of Deputyship orders:

  1. Welfare and
  2. Property and Affairs for the purpose of looking after someone’s finances

It is the latter deputyship order that is required, Property and Affairs.

There is an application fee applicable and this is recoverable from the Funds of the person lacking capacity.

For more information on becoming a Deputy and to download the application pack please visit the .gov court of protection page [external link].

Ordinary Power of Attorney

Ordinary Power of Attorney is only valid whilst a person has the mental capacity to make their own decisions. An Ordinary Power of Attorney gives one or more people the legal authority to handle your financial affairs.

A Power of Attorney provides the person you have appointed to act on your behalf with a legal document to prove their designated powers. Ordinary Power of Attorney does not need to be registered with the Court of Protection.

Lasting Power of Attorney

A Lasting Power of Attorney must be created whilst the person has the mental capacity and understanding of its nature and effect. Lasting Power of Attorney is a legal document which appoints one or more people to act on a person’s behalf if they become incapable of making their own decisions sometime in the future.

There are 2 types of Lasting Power of Attorney:

  1. a Property and Affairs Lasting Power of Attorney – This gives the attorney authority to make decisions about your financial affairs;  
  2. a Personal Welfare Lasting Power of Attorney – This gives the attorney authority to make decisions about your healthcare and personal welfare.

Both types of Lasting Power of Attorney must be registered at the Office of the Public Guardian (OPG) before they can be used. Registration can be done before or after the donor loses the mental capacity to make their own decisions.  There is a fee chargeable for registering the Lasting Power of Attorney.

The forms to create a Lasting Power of Attorney can be completed by the person to whom it relates or it can be completed by a Solicitor. The forms, the notes and guidance which accompany them and all forms necessary for registering a Lasting Power of Attorney are available from the Office of the Public Guardian (OPG)[external link].