If a person has not made an Enduring or Lasting Power of Attorney and no longer has the mental capacity to be able to make a Lasting Power of Attorney in relation to their property and financial affairs, then it will be necessary for someone to make an application to the Court of Protection. They need to apply to become a deputy to be given power to make decisions on behalf of that person.
What can a property and financial affairs deputy do?
Once appointed, a deputy can make decisions on behalf of the person who lacks capacity ‘P’ in relation to their property and financial affairs. This will include the ability to sell any property owned solely by P (a separate Court order is required to deal with the sale or transfer of any jointly owned property, see below) The deputy will also be able to access P’s bank accounts, pay bills and claim or receive any benefits to which P is entitled.
What can’t a deputy do?
Whilst a deputy can make a lot of decisions on behalf of P, the deputy cannot make a will for P and they have limited power to make gifts on P’s behalf. You should contact us for advice if you wish to make gifts on behalf of P.
When two or more people own property together, they are referred to as the trustees of that property. Under the provisions of Section 20(3)(c) of the Mental Capacity Act 2005, deputies are restricted from carrying out trustee functions. This does not mean that the deputy cannot also be appointed as a trustee of the property, it is simply the case that they are distinct and separate roles and a separate application needs to be made to the Court.
If P owns property jointly with another person and you wish to sell or transfer the property, please contact us for advice.
How much will it cost and who pays?
Solicitors fees for applications for the appointment of a deputy in relation to Property & Financial matters are fixed by the Court. Currently solicitor’s fees for making such an application are £850 plus VAT.
Other fees are also payable at the time the application is made which we will discuss with you. The cost of the application and all associated fees are payable from P’s funds.