A property and financial affairs deputy is a person or Trust Corporation who is appointed by the Court of Protection to manage the property and financial affairs of an individual who lacks the necessary mental capacity to manage their property and financial affairs themselves.
An individual, ‘P’, may require a property and financial affairs deputy if they have sustained a brain injury or have an illness or disability which results in P lacking capacity to manage their own property and financial affairs.
A deputy may be required if P lacks capacity and did not grant a Lasting Power of Attorney for property and finance or an Enduring Power of Attorney when P had capacity. A deputy may not be required if P’s assets are limited to benefit income. In these circumstances, it may be appropriate for P to have an appointee to liaise with the DWP and secure P’s benefits.
Below are some examples of individual’s who may need a property and financial affair’s deputy.
- A child who sustained a brain injury during their birth,
- An individual who may have sustained a catastrophic brain injury because of a road traffic incident,
- An individual who sustained catastrophic brain injury at work,
- An individual with dementia,
- An individual with a profound learning disability.
It is important to note that there is a presumption by law that P has capacity to make decisions themselves unless proven otherwise. If P does lack the necessary mental capacity to manage their property and financial affairs it is also important to note that capacity is decision specific. This means that P may have capacity to manage their day-to-day expenses such as utility bills and other household expenses but may lack the necessary mental capacity to manage their investments and property.
A property and financial affairs deputy’s authority will be set out in the Court order, the deputyship order, confirming their appointment. The deputy will need to manage P’s finances by making payment of P’s bills and ensuring that P is in receipt of all income that they are eligible for such as benefits and pensions. A deputy is also responsible for managing P’s bank and building society accounts. They are also responsible for dealing with any capital assets and may need to make investment decisions on behalf of P. A deputy will also have to manage P’s property and will require specific authority within the deputyship order to buy or sell property on behalf of P. A deputy also has authority to make small gifts on special occasions such as birthdays, to persons connected to P providing the gift is reasonable when considering the size of P’s estate.
A property and financial affairs deputy can only act within their authority set out in the deputyship order. A deputy must also comply with the rules set out in the Mental Capacity Act 2005 and the Code of Practice. A deputy must always act within P’s best interests when carrying out their role as deputy.
A property and financial affairs deputy must be over the age of 18. A family member or close friend of P can be appointed as deputy, and they are referred to as a lay deputy. If P does not have anyone who is willing or able to act as their deputy, a professional deputy such as a solicitor or local authority may be appointed to manage P’s property and financial affairs. In certain complex circumstances involving large sums of money, the Court may decide that it is appropriate for a professional deputy to be appointed. For example, if a wealthy elderly person has a complex estate or an individual has received a large compensation award, a solicitor may be appointed as deputy to manage P’s property and finances.
At Enable Law, we can be instructed to make an application to the Court of Protection to appoint a lay deputy. We also have several personally appointed professional deputies who are willing to act as property and financial affairs deputy for P providing P’s funds are such which require a professional to be appointed. It is also possible to appoint The Foot Anstey Trust Corporation Limited as property and financial affairs deputy for P. Enable Law is part of the Foot Anstey Group.
If you would like to discuss an application to the Court of Protection to appoint a property and financial affairs deputy, please contact a member of our team.
