It is not uncommon for individuals to lose the ability to make decisions for themselves. When someone in your life is no longer able to manage their financial affairs or make informed decisions about their personal welfare, you must try and establish if they have made a Lasting Power of Attorney (LPA). If so, it is at this point the attorney will need to step up and act.
However, if there are no such attorneys and you want to be able to make these decisions it may be necessary to apply to the Court of Protection. Through this process you may be appointed as a deputy for said person, only then are you able to assist them with managing their personal affairs. Our Court of Protection solicitors can guide you through this process, or act as professional deputies themselves if required.
Once your child turns 18, it is illegal for you as their parent or guardian to manage their money.
This means that you cannot speak to the bank on their behalf, make any payments from their account, or collect state benefits for them (unless you are a Department for Work and Pensions [DWP] Appointee).
If your child has capacity, they can make a Lasting Power of Attorney (LPA). If your child lacks capacity, then a deputyship application will need to be made for them. If needed, a capacity assessment can be completed by a social worker or GP.
If your child has capacity, when they turn 18, they can make an LPA to enable you to make decisions for your child on their behalf.
There are two types of LPAs that can be made. You can choose to put one or both in place:
Health and welfare: for decisions on where you live and with whom, the care you receive and more
Property and finances: for running bank accounts, buying or selling property, and managing investments
If your child lacks capacity, a deputyship application will need to be made to the Court of Protection to appoint a deputy or multiple deputies.
Unlike LPAs, this is usually only granted for property and finances
Making a deputyship application should be considered by the child’s family and local authority from around the time the child is 16, so that a deputy can be in place for when the child turns 18.
This is a longer process than making LPAs, as it is not the child themselves making the choice of who they want to manage their finances.
If you are intending to leave money in your Will to your child and they receive state benefits, you should consider a discretionary trust.
This will ensure your child’s entitlement to benefits is not affected by their inheritance.
We have answered some of your frequently asked questions to help you understand more about this process.
A person may be deemed to lack capacity if they have:
Severe learning difficulties*
Suffered a serious brain injury or illness
Dementia or a similar degenerative disease
The general rule is that if a person is unable to make important decisions for themselves when it is necessary for those decisions to be made, they would be considered to ‘lack capacity’.
*If you are the parent of a child with severe learning difficulties, you WILL NOT have the automatic right to manage your child’s affairs once they reach 18.
An LPA can be used to give someone similar powers to that of a court appointed deputy.
The key difference is that an LPA is used to empower a person to look after your affairs should something happen to you in the future, where as a Court of Protection Deputyship can be applied for to manage the affairs of another, after they’ve been deemed to have lost capacity.
Anyone over the age of 18 years old with sound mind can act as deputy. Family or friends are the court’s preferred option if this is a possibility because this reduces the cost that the vulnerable person will incur.
If there are no family or friends able/willing to act as deputy, a professional deputy (such as a solicitor) can be appointed.
Where the vulnerable person has very limited assets, it may be deemed more appropriate for the local authority to act as deputy because their charges are less than that of a professional deputy. However, generally, local authorities will only agree to do this if there are no family or friends involved.
There may be times when a deputy requires advice or assistance to perform their duties. This may include:
Help completing the annual report
Help submitting tax returns
Acting as your advocate if matters become contentious
Advice if you feel a co-deputy or attorney is not acting in the best financial interests of the person they are appointed for
Ad hoc advice to make sure you are staying within the boundaries of the Deputyship Order. This may include reviewing employment contracts for live in carers, advice about deprivation of liberty, advice about deliberate deprivation of assets etc
If you are being investigated due to possible mismanagement of someone’s finances, we can also assist you to respond to the Office of the Public Guardian who supervise deputies
Submit an enquiry and one of our team of experts will be in touch as soon as possible to discuss your needs.
Or call the Court of Protection team on 01522 515011