11 January 2021
Deputyship – When A Power Of Attorney Is No Longer An Option
If your partner, a parent, or another close relative is losing their ability to manage their own affairs, then you may be concerned about how much you can help, particularly where financial matters are concerned.
If the person you care for has not made their own plans, such as by making a Lasting Power of Attorney (or an enduring power of attorney), no one will be able to access their funds or make financial decisions on their behalf. This can be particularly problematic when it comes to accessing money for day-to-day living.
Many people simply do not want to consider a future in which they are no longer independent. Others might not know who to appoint as an attorney or might worry about being a burden on their family. Whatever the reason, even if there is no power of attorney then you can still help by applying to become their deputy.
Applying To Be A Deputy
Before making an application to become someone’s deputy it is imperative that you ensure they have not already made a power of attorney. Unless a sole attorney has died or lost capacity themselves (or an attorney has been removed by the court for reasons of misconduct), the court will not overrule the wishes of the person who has lost capacity.
It may simply be a case of looking through their paperwork to find out if there is an existing power of attorney. Alternatively or if you remain uncertain, you can find out from the Office of the Public Guardian if a power of attorney has already been registered.
If you are satisfied there is no existing power of attorney, you can apply to the court to become the person’s deputy. Providing the court is satisfied that the person no longer has the necessary capacity to be able to manage their own finances and that you are a suitable person to act for them, the court will appoint you.
Who Pays The Deputyship Fees?
Because of the different parties involved along the way, deputyship applications are notoriously expensive.
Some costs, such as the cost of the medical report and the court application fee, have to be paid upfront. You will need to meet these costs, but you can reimburse yourself from the funds of the person about whom the application is made once you are appointed. Other costs, such as solicitors’ fees, can be paid once you have access to the person’s funds after a deputyship order has been granted.
Another level of protection that is afforded to the person whose finances you will be managing, is that you will need to take out insurance annually. The insurance policy is an expense of the person about whom the application is made and can be met from their funds. In the event that something does go wrong, such as if you were to use the person’s money in a way the order does not allow for – for example by making an unauthorised gift, a claim can then be made to pay back any lost funds to your loved one via the insurer.
In part 2 of this post, we will consider how long the process of applying to become a deputy takes, and the reporting requirements on a deputy.