Deputyship and Financial Affairs
Amendment
In December 2024, information about Sibstar was added to Section 2, Identifying Support Needs. Information was also added to Section 4, Concerns About an Appointee, Deputy or Donee, and Section 5, Exploring All Available Options, to clarify that the Court of Protection can also revoke a Deputyship or Lasting Power of Attorney. Further information was also added to Section 6, Making a Property and Affairs Deputyship Application regarding notifications. Information about fixed costs and Deputy renumeration was updated in Section 5, Exploring all Available Options.
This procedure should be used by social care practitioners when a person may (or does) need support to manage their property or affairs.
A person can need support to manage their property or affairs because either:
- They lack capacity to do so; or
- They have a physical disability that prevents them from being able to do so.
Determinations about mental capacity must be made through a process of mental capacity assessment.
Guidance on assessing capacity can be found in the Mental Capacity Act 2005 Resource and Practice Toolkit.
If a person has capacity to manage their finances, but does have difficulty doing things like going shopping, withdrawing cash or paying bills, they may be interested in exploring a Carer’s Card account with their bank. This enables them to nominate a person they trust to receive a debit card linked to their account, that they can then use to make purchases, withdraw money or pay bills on the person’s behalf. Further information about Carer’s Card accounts and how they work is available on the Money Helpers website.
For further information, see: Carer’s Card Accounts (Money Helpers website).
Another option people may want to explore is Sibstar. Sibstar is a flexible debit card and app that can support a person with dementia, learning disability or other cognitive impairment to manage everyday spending safely. It allows the person, a family member or carer to switch cashpoint withdrawals off and on, set daily or monthly spend limits, add top ups, show real-time card use notifications and freeze/unfreeze the card if it is lost or stolen. For further information, see: Sibstar.
You must explore whether the person is already receiving the support they need before taking any further action.
Appropriate support is either:
- An appointee;
- A Deputy;
- A Donee of a Lasting Power of Attorney; or
- A Donee of an Enduring Power of Attorney.
If appropriate support is in place and there are no Safeguarding concerns, there is no need for the Local Authority to take any further action.
The role of an appointee
An appointee is a person appointed by the Department for Work and Pensions (DWP) to be responsible for making and maintaining any benefit claims on behalf of a person who cannot do so because they either lack capacity or their physical disability prevents them from being able to do so.
The appointee role involves:
- Claiming all DWP benefits that the person may be entitled to;
- Collecting all benefits into a designated account;
- Reporting changes in circumstances; and
- Managing and spending benefits in the Best Interests of a person who lacks capacity.
Establishing if there is an Appointee
The Department for Work and Pensions (DWP) write to somebody when they become an appointee, and an appointee should be able to show you this letter (form BF57) as evidence that they have the authority to act. If this is not available they should be able to contact the DWP by telephone and ask them to confirm this verbally.
The role of a Deputy
When a person lacks capacity to make decisions for themselves, a Deputy is a person or organisation appointed by the Court of Protection to:
- Make general or specific decisions as set out by the Court; and
- Take steps to implement those decisions.
There are 2 types of Deputy:
- Property and Affairs; and
- Health and Welfare.
Note: This procedure relates only to Property and Affairs Deputies. For applications relating to Health and Welfare you should refer to the Court of Protection section of the Mental Capacity Act 2005 Resource and Practice Toolkit.
Some examples of things that a Property and Affairs Deputy can be authorised to do as part of their role include, but are not limited to:
- Managing money;
- Claiming benefits and pension;
- Managing bank accounts and utilities;
- Managing debt;
- Buying and selling property (a further order must be sought to sell a property);
- Holding a tenancy;
- Management of property (e.g. carrying out maintenance work).
A Deputy has a legal requirement to act on matters they have been given the authority to act upon unless the Court of Protection has given them permission to delegate this to someone else, or where there are 2 Deputies able to make the decision and authorised to do so severally (independently of each other).
For further information, see Deputies in the Mental Capacity Act 2005 Resource and Practice Toolkit.
The role of a Donee of a Lasting Power of Attorney
A Power of Attorney is somebody appointed by a person with capacity to;
- Make general or specific decisions as set out by the person; and
- Take steps to implement those decisions; when
- The person lacks capacity to make that decision for themselves (see note below).
Note: A Lasting Power of Attorney for Property and Affairs can also be used to help the person manage their finances before they lack capacity, as long as it has been registered with the Office of the Public Guardian.
A Donee of a Lasting Power of Attorney has a legal requirement to act on matters they have been given the authority to act upon, and cannot delegate this to anyone else. The only exception to this is where there are multiple Donees and the Lasting Power of Attorney authorises them to make decisions severally (independently of each other).
Enduring Powers of Attorney
Prior to 1 October 2007, a person could make an Enduring Power of Attorney which would enable the Donee to make decisions relating to property and financial affairs for the person.
Enduring Powers of Attorney were replaced by Lasting Powers of Attorney, but if there is still a valid Enduring Power of Attorney in place which is registered with the Office of Public Guardian, then the Donee of the Enduring Power of Attorney will be able to carry out duties within their scope of authority.
Establishing if there is a Deputy or Donee of a Lasting / Enduring Power of Attorney
Sometimes there will be evidence already recorded on Local Authority systems that confirms there is a Deputy or Donee of a Lasting / Enduring Power of Attorney.
If this cannot be provided you should complete form OPG100 to request confirmation of the person’s legal status from the Office of the Public Guardian.
Once you have established there is a Deputy or a Donee of a Lasting / Enduring Power of Attorney you must be satisfied that they are authorised to provide the support that the person needs with their property and affairs at that time. This information will be set out in the Lasting Power of Attorney or Court Order. If you are unsure of the authority given, seek legal advice.
If they are authorised to make the decision that needs to be made, the Donee of a Lasting Power of Attorney or Deputy should make arrangements do so (unless, in the case of Deputies only the Court of Protection has given them permission to delegate this to someone else).
If there is a Deputy or Donee of a Lasting / Enduring Power of Attorney but they are not authorised to act on the matter in hand see Section 5, Exploring all Available Options.
In all cases where the level of risk to the person, their property or financial affairs warrants it a safeguarding concern should be raised.
See: Safeguarding Adults
Unless the appointee intends to relinquish the appointeeship you should, wherever practicable try to support them to meet the requirements of the role before taking any other action.
If it is not appropriate to provide support (or if the provision of support has not enabled the appointee to meet the requirements of the role) you should speak with your line manager about whether a Deputyship application may be appropriate.
If you have any of the following concerns about a Deputy you must raise this with your line manager, and steps should be taken to notify the Office of the Public Guardian (OPG);
- Declining to act when they have the authority to do so;
- Asking another person to act on their behalf (unless this other person is a jointly appointed Deputy with the authority to make decisions severally); or
- Making a decision that is not in line with the Court Order or the principles of the Mental Capacity Act 2005.
The OPG will investigate the concerns and determine whether the Deputyship should be revoked.
If an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.
Note: A Deputy can make a decision that you do not agree with so long as they are acting within the authority of the Court Order and have applied all of the 5 statutory principles of the Mental Capacity Act 2005, including the Best Interests principle.
Although the Office of the Public Guardian is responsible for monitoring existing Deputyships, the Court of Protection can also revoke the appointment of a Deputy.
If you have any of the following concerns about a Donee of a Lasting /Enduring Power of Attorney you must raise this with your line manager, and steps should be taken to notify the Office of the Public Guardian;
- Declining to act when they have the authority to do so;
- Asking another person to act on their behalf (unless this other person is a jointly appointed Donee with the authority to make decisions severally); or
- Making a decision that is not in line with the principles of the Mental Capacity Act 2005.
The OPG will investigate the concerns and determine whether the Lasting Power of Attorney should be revoked.
If the person lacks capacity and an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.
Note: If the person about whom the decision relates still has mental capacity, they may choose to revoke the Lasting Power of Attorney and are permitted to do at any time.
Although the Office of the Public Guardian is responsible for monitoring Lasting Powers of Attorney, the Court of Protection can also revoke a Lasting Power of Attorney or (where there are multiple donees) revoke the authority of a Donee to act.
The Local Authority is permitted to charge the person fixed costs for the services it provides as a Deputy. This includes costs incurred during the initial application, annual management fees and annual fees to prepare any reports for the HMRC. Making an application for the Local Authority to act should therefore be the last resort after all other options have been ruled out.
Further information about the fees charged for providing a Deputy service, see Practice Direction 19B - Fixed Costs and Deputy Renumeration in the Court of Protection.
If there is already a Deputy for Property and Affairs but they are not authorised to act on the matter in hand you should discuss whether they are able to approach the Court of Protection to seek an addition to the original order of authority that was made.
If the Deputy declines to approach the Court, you should raise this with your line manager and take steps to notify the Office of the Public Guardian (OPG). The OPG will investigate the concerns and determine whether the Deputyship should be revoked.
The Local Authority can only make a Deputyship application if the existing Deputyship is revoked. However, if an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.
Although the Office of the Public Guardian is responsible for monitoring existing Deputyships, the Court of Protection can also revoke the appointment of a Deputy.
If the person has capacity
If there is a Donee of a Lasting Power of Attorney but they are not authorised to act on the matter in hand, they should speak with the person to see if they are willing to extend the remit of the Lasting Power of Attorney to include the current matter.
As the person has capacity, this is their choice.
If the person lacks capacity
If the person lacks capacity and there is a Donee of a Lasting Power of Attorney but they are not authorised to act on the matter in hand, discuss with the Donee whether they are able to apply to the Court of Protection for the Lasting Power of Attorney to be revoked and a Deputyship granted.
If the Donee declines to approach the Court, you should raise this with your line manager and take steps to notify the Office of the Public Guardian (OPG). The OPG will investigate the concerns and determine whether the Lasting Power of Attorney should be revoked.
The Local Authority can only make a Deputyship application if the existing Lasting Power of Attorney is revoked. However, if an urgent decision is needed about the matter in hand, legal advice should be sought about the need to take the matter to the Court of Protection for a one-off determination.
Although the Office of the Public Guardian is responsible for monitoring Lasting Powers of Attorney, the Court of Protection can also revoke a Lasting Power of Attorney or (where there are multiple donees) revoke the authority of a Donee to act.
You should discuss with an existing appointee whether they are able to make an application to the Court of Protection for Deputyship when:
- The person lacks capacity; and
- The nature of the support they need falls outside the remit of the appointee role.
There are a number of arrangements that a person with capacity can make that will support them to manage their financial affairs. The person will remain accountable for their own financial affairs.
If capacity is in doubt, the Mental Capacity Act principles must be applied to determine whether the person has capacity to understand the arrangements that they are making and the consequences of authorising another person to act for them.
See: The Mental Capacity Act 2005 Resource and Practice Toolkit.
Arrangements that can be made by a person with capacity are explained in the table below.
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Third party mandate |
Banks or Building Societies will let customers appoint a third part to undertake transactions. Individual Banks/Building Societies hold their own application forms. |
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Joint accounts |
Accounts can be opened in joint names to enable another person (usually a close relative) to operate the account. |
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Automatic credit transfer / direct debits |
Most pensions, benefits and other income is paid automatically into an individual’s Bank/Building Society account and arrangements can be made for the majority of outgoings to be paid by direct debit (e.g. utility bills, council tax, TV licence, and insurance). |
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Lasting Power of Attorney (LPA) (for Property and Affairs) |
A legal document that allows someone (who has mental capacity) to choose other people who they want to make decisions on their behalf either immediately or only when they lack mental capacity to do so themselves. |
An LPA must be drawn up using a prescribed form, available on the GOV.UK website to download or complete online.
The form is designed so that anyone can fill it in. However, once completed it becomes a powerful legal document, so individuals should be recommended to take legal advice. There are also some charities that can assist with the process for a small charge e.g. Diverse Abilities, Age UK and Age Concern.
An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give the attorney any legal powers to make a decision for the donor. The donor can register the LPA while they are still capable, or the attorney can apply to register the LPA at any time.
The LPA can be used as soon as it is registered with the OPG or can be restricted to the attorney acting only after the donor has lost mental capacity. An attorney is appointed to make decisions as if they were the donor themselves and must act in the donor’s best interest and have regard to the MCA Code of Practice.
If the person lacks capacity to donate their Lasting Power of Attorney and they require a legal framework in place to manage their financial affairs (i.e. the powers under Appointeeship are insufficient), then a deputyship application will be needed.
In the first instance, consideration should be given as to whether there is a suitable family member or trusted friend who would be able and willing to apply to become a Deputy. Discuss this possibility with them and establish if they are able to do so. During any discussion you should provide good information about the relevant role. This is set out in section 3 above and the person can also look at the government website. If they need or request it, allow the family member or friend some time to think things over or access independent advice before making a decision.
If they decide to proceed, consider any support they may need to make the application. For example, this could be provided by an advocate or voluntary organisation such as First Point or the Citizen’s Advice Bureau. Do not close the case until you know the outcome of their application and are satisfied that the person's finances are safeguarded.
If they decide not to proceed find out why and explore whether there are any barriers that can be overcome. For example, they may not have understood the role and further information could assist, or they may find the process of applying daunting.
If there is no suitable family member or friend to apply for Deputyship, then an independent service will be needed.
If the person has savings above the Local Authority threshold of £23,250, they own or joint own a property, or their financial situation is particularly complex, then a solicitor is likely to be needed to apply to become the person’s Deputy.
There are a few different options and each one should be considered on a case-by-case basis. A Best Interests Decision will be needed before any referrals are made.
Options for Dorset residents are as follows:
- A private solicitor who specialises in Court of Protection and Deputyship work. The person may already have a preferred solicitor for other matters, and if that solicitor also provides Deputyship services, then this may be an option;
- The person could be supported to select a Panel Deputy from the approved list from Court of Protection. See GOV.UK;
- DOSH offer deputyship services alongside Appointeeships and Financial Advocacy to people who have a learning disability. See www.dosh.org/;
- The Money Carer Foundation offers Deputyship services as well as Appointeeships and Lasting Power of Attorney services. See moneycarer.org.uk/;
- Allied Services Trust offers Deputyship Services as well as Lasting Power of Attorney services for those who do not have the financial means to use a private solicitor. See www.alliedservicestrust.org/.
If all of the above have been exhausted and none are deemed suitable to apply to become the person’s Deputy, then consideration should be given as to whether a referral should be made to Dorset Council’s Service User Financial Affairs (SUFA) team.
The person should only be referred to the SUFA team where they do not have capacity to manage their financial affairs and:
- There are no family members or friends available to act on his/her behalf; and
- They are unable to fund a professional to act on his/her behalf due to limited assets; or
- Where there is reason to believe that abuse and or family conflict has occurred or is likely to occur.
The team can provide advice and guidance regarding service users’ finances–please contact them by email using SUFATeam@dorsetcouncil.gov.uk
Remember: An application for the Local Authority to act should be the last resort after all other options have been ruled out.
Referrals to the SUFA team are made via Mosaic.
Step 1
From the Person Summary, select Deputyship/Appointeeship Referral from the Start menu (or select it as a next action from the Strength & Needs Assessment, Care and Support Plan or the Initial or Ongoing Review work steps).
Step 2
Complete the work step fully, ensuring that you accurately record details of the person’s finances.
Step 3
Once completed, select Deputyship / Appointeeship Application from the Next Actions screen, and assign this to the SUFA team. The form can then be 'green ticked'.
In addition to the mosaic referral form, you will also need to complete the following documents and send these through to the SUFA team:
- A mental capacity assessment around management of financial affairs;
- A best interests decision providing a rationale for why it is in the person’s best interests to be referred to the SUFA team for Deputyship;
- A completed COP3 Please note:- this needs to be signed with a ‘wet signature’ and send to the SUFA team via Dorset Council’s internal post.
You must also ensure that copies of financial documents are uploaded to Mosaic, and any letters from family members who have confirmed they cannot / do not wish to act and the reasons why.
Notifying the person the application is about (P)
Before the application is submitted, the Court requires that the person the application is about (P) is served formal notification. If you are asked to serve this formal notice, this should be done using form COP14PADep. The person has 14 days to acknowledge the notification, provide their wishes and feelings regarding the application, and confirm whether they agree with the order that is going to be asked for. After this time the Court will assume their agreement to it.
Notifying interested parties
Before the application is submitted, the Court requires that a minimum of three interested parties are served formal notice of the application as respondents. This could be the person's family member, friend, advocate, GP etc. If you are asked to serve this formal notice, this should be done using form COP15PADep. Each notified person has 14 days to acknowledge the notification and confirm whether they agree with the proposed order being made, after this time the Court will assume their agreement to it.
Once the SUFA team have checked the application and accepted the referral, they will inform the allocated worker. The SUFA team will complete the Court of Protection paperwork and file this with the Court.
In the meantime, the SUFA team will apply to the Department for Work and Pensions to take over as the person’s Appointee for benefits.
Note: Property and Affairs Deputyship applications can take up to 6 months (sometimes longer), depending on the capacity of the Court of Protection.
The allocated worker must remain involved with the person as a minimum until the Final Order is granted by the Court. Until this order is received, the SUFA team do not have authority to manage the person’s finances, and so the allocated worker will need to be involved in best interests decisions around the person’s finances and ensure that the person is receiving ‘Gross Without Prejudice’ funding in the interim. The allocated worker will be responsible for taking steps to safeguard the person and support them with their finances.
When the Final Order is received a new bank account can be opened, the Order registered with the relevant bank accounts and details of the service users ‘complete financial picture’ can be obtained. Once this is established, a financial assessment can be completed, and any debts can be repaid. This can sometimes take over 12 months until any ‘gross without prejudice’ payments made by DC can be ended.
Social work practitioners should review the on-going need for Deputyship at the same time as any statutory Care and Support Plan review, or whenever there is evidence to suggest that alternative arrangements may be more appropriate.
Some key questions to ask include:
- Are the arrangements working from the person's perspective?
- Have there been any changes to the person's circumstances that might affect their benefits? (see below)
- Have there been any changes in the person's capacity/ability to manage their own money?
- Is there another person who would be more appropriate to act?
- If the person receives support to manage cash is the current level of support being provided still the least restrictive?
- Is the person being supported to make their own decisions and choices about spending their money, wherever this is possible?
- If the person receives cash is this being used appropriately?
- Are there any new risks to mitigate?
- Is Deputyship still required?
Please ensure that where SUFA do act on behalf of a person, they are advised of any significant change to the person’s circumstances and that they are invited to annual social care reviews, CHC reviews, Best Interest meetings and any changes to the person’s package as there could be a financial implication based on the outcome of these situations.
SUFA are required to report any such financial issues to the Office of the Public Guardian in an annual report as part of the performance standards that Deputies must adhere to. The SUFA team would be expected to challenge if appropriate when CHC is refused or reassessed and the person is found not to be eligible.
A SUFA client’s record will be identifiable on Mosaic as it will have Susan Farmer from Mental Capacity Act/DoLS team as a worker relationship.
The Local Authority is required to report any changes in the person's circumstances that could have an impact on their:
- Rate of benefit; or
- Overall entitlement to a benefit.
Changes in circumstances include:
- The accumulation of funds above permitted thresholds;
- Changes in illness or disability;
- Changes in mental capacity;
- Change in address;
- Change in marital status;
- Change in income.
Unless a person dies all Deputyships can only be revoked by the Court of Protection.
If you believe that a Deputyship is no longer appropriate you should:
- Discuss this with your line manager; and
- If in agreement, discuss with the SUFA team.
They will determine, on the basis of the information provided whether they should take steps to apply to the Court of Protection.
An application to the Court of Protection to revoke Deputyship should always be made when:
- A person regains capacity; or
- Someone from the person's informal network has been identified, agrees to assume the role and is appropriate to do so.
The SUFA team should be notified as soon as possible after a person dies so that they can:
- Cease making regular expense payments to the person (or their nominated representative); and
- Cease making financial contributions to the Local Authority; and
- Notify the Court of Protection; and
- Notify the DWP.
They will also ensure that any monies held in the person's name are released in line with an executor's request or solicitor's instructions.
Last Updated: December 12, 2024
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