Ask the Legal Expert: How can I make financial decisions for my elderly mother?
- AuthorElize Blake
“My elderly mother has Alzheimer’s and has now lost the capacity to make decisions on her own financial affairs. I need to be able to sell her house and manage her assets for her, but without a Lasting Power of Attorney in place, how can I do this?”
I am very sorry to hear of the decline in your mother’s health. It is a very difficult and emotional time, not to mention the additional stress of having to make decisions on her financial matters. Unfortunately, if your mother did not put a Lasting Power of Attorney in place whilst she had capacity, your only option to be able to manage her assets from here on, is to apply for a Court of Protection Deputyship. You can think of it as a bit like the Conservatorship in place for Britney Spears, although the law is very different here in the UK. The underpinning legislation which all Deputies must have regard to in England and Wales is the Mental Capacity Act 2005 (MCA) which is designed to both protect and empower those who lack capacity.
Applying for a Deputyship can be a complicated and confusing process. Below are some FAQs that help to explain more:
What is a Court of Protection Deputyship?
The Court considers applications to appoint Deputies to make day to day decisions for those who lack the mental capacity to make decisions for themselves. The Court allows the Deputies to take control of the person’s property and financial affairs and make best interest decisions as if they were their own.
Who can apply to become a Deputy?
Anyone can apply to the Court of Protection to be appointed as a Deputy providing that they are over the age of 18, do not have a criminal record and have not been declared bankrupt. The Court can appoint a family member or friend of the person who has lost mental capacity. One person may be appointed or the Court may appoint Deputies to act jointly. These types of Deputy are generally referred to as a Lay Deputy.
A Professional Deputy can also be appointed, which can help to alleviate the burden that being a Lay Deputy may put on a family. At JCP Solicitors our team act as Professional Deputy for a number of clients with brain injury, illness or disability. We can provide you with advice and assistance to help you determine whether a Lay Deputy or Professional Deputy would be more suitable for your circumstances.
What is the role of a Deputy?
A Deputy’s role involves managing things like the person’s bank accounts, household bills and making payments on their behalf. A Deputy may also need to manage assets such as property, pensions and shares & investments and may have to submit annual tax returns when they are required. Prior knowledge of these processes would be advantageous, and they must be able to always act in the person’s best interest.
How long does a Court of Protection Order last?
A Deputyship Order lasts for as long as the person lacks mental capacity and is unable to make their own property and financial decisions.
The appointed Deputy can apply to the Court to be discharged (removed) and a new Deputy can be appointed to make decisions, however, the Court will consider whether this is suitable for the person who lacks mental capacity.
A person who is deemed as lacking the capacity to make their own decisions can, in some situations, regain capacity in the future. The person’s capacity would need to be reviewed by an approved healthcare professional and if confirmed, an application should be made to the Court to end the Deputyship Order.
Do you need a solicitor to make a Court of Protection application to become a Lay Deputy?
You don’t necessarily have to instruct a Solicitor to make an application to the Court of Protection, however, the process can be complicated and long-winded, so you may prefer for a Solicitor to prepare the application.
At JCP Solicitors we have a team of experts who can ensure that your Deputyship application is completed properly from start to finish. We understand that this can be a daunting process and so our advice, guidance and assistance can reassure you that all the correct procedures and processes are being followed.
This question is based on a hypothetical situation.