FAQs: When Does a Lay Deputy for Property and Financial Affairs Need Permission from the Court of Protection?
Re ACC & Others is an important case which changes the rules for lay Deputies who manage the financial affairs of others. Our expert Community Care Law solicitors explain what this means for lay Deputies
- Has the law about a Deputy’s authority to manage financial affairs changed?
- What decisions can you make as Deputy for property and financial affairs?
- How will you know what powers you have as Deputy for property and financial affairs?
- As Deputy, can you sell property without permission from the Court of Protection?
- As Deputy for property and financial affairs, can you conduct litigation on behalf of P?
- Do you need Court of Protection permission to appeal against a negative NHS Continuing Healthcare funding decision for P?
- Do you need Court of Protection permission to appeal against a funding decision by Social Services?
- Do you need Court of Protection permission to challenge P’s Education, Health & Care Plan (EHCP)?
- As Deputy, can you still use P’s money to pay for legal advice?
- What other Deputy decisions need permission from the Court of Protection?
- As lay Deputy, how do you obtain authority or permission from the Court of Protection?
Has the law about a Deputy’s authority to manage financial affairs changed?
Yes: the judgment in the case of Re ACC & Others, published in spring 2020, has clarified the rules about what actions Deputies are authorised to take and the situations in which the Deputy will need to ask the Court of Protection for specific authority. The judgment primarily relates to Professional Deputies, who are paid to manage the property and financial affairs for “P” – the person lacking capacity to manage their own finances. However, the judgment has also changed the rules for lay Deputies who manage the financial affairs of a relative or friend. There are new limitations on the steps that you can take as a lay Deputy.
What decisions can you make as Deputy for property and financial affairs?
When the Court of Protection appoints a lay Deputy to manage the property and financial affairs for their friend or relative, the Deputyship Order gives the Deputy “general authority” to make a range of day to day decisions. General authority will usually include:
- Managing P’s bank account and authority to open a separate “Deputy” account
- Paying bills on P’s behalf, including care fee bills
- Claiming benefits from the Department of Work and Pensions
- Liaising with financial institutions and making investments
How will you know what powers you have as Deputy for property and financial affairs?
The Deputy’s authority and powers are outlined in the Court of Protection Deputyship Order which confirms that the Deputy has been appointed. The Order will include a section entitled “Authority of Deputy” which lists what the Deputy can do and when an application for specific authority from the Court may be required.
As Deputy, can you sell property without permission from the Court of Protection?
One of the questions on the Court of Protection Deputyship application forms is whether the Deputy needs to sell P’s property. This might be necessary to pay for P’s care home fees, or to buy a more suitable property for P to live in. It is important to plan ahead, even if the property does not need to be sold straight away. Seeking permission at the initial application stage means that the Deputyship Order will usually include specific authority to sell. Otherwise, the Deputy will need to seek specific authority at a later date, which will involve time and cost.
As Deputy for property and financial affairs, can you conduct litigation on behalf of P?
No: conducting litigation does not fall within the Deputy’s general authority. This judicial clarification is one of the major changes resulting from the case of re ACC. Senior Judge Hilder defined “litigation” very widely. This will have a major impact upon many lay Deputies who previously considered that taking action to challenge a negative care funding decision by Health or Social Services was part of their day to day Deputy role.
Do you need Court of Protection permission to appeal against a negative NHS Continuing Healthcare funding decision for P?
Yes, even though P’s eligibility for NHS Continuing Healthcare funding (NHS CHC) is clearly relevant to the Deputy’s management of P’s financial affairs. The judgment categorises NHS CHC funding disputes as litigation, although they are not dealt with by the Courts. If P is found ineligible for NHS CHC funding, or loses an existing NHS CHC funding award, the Deputy must apply to the Court of Protection for specific authority to use the NHS CHC appeal process. The Deputy needs to seek permission before they send the NHS CHC appeal letter to the Clinical Commissioning Group or to NHS England. If Court permission is not obtained, the Deputy runs the risk of not being able to use P’s funds to pay the related legal costs of the NHS CHC appeal.
Do you need Court of Protection permission to appeal against a funding decision by Social Services?
The lay Deputy does not need specific authority from the Court to use Social Services’ complaints process to challenge a social care funding decision on behalf of P. The Deputy can also take P’s case to the Ombudsman without seeking permission from the Court of Protection. However, if the Deputy believes it is necessary to bring Judicial Review proceedings against Health or Social Services regarding P’s care and support arrangements, then the Deputy must obtain specific authority after Pre-action Protocol correspondence has been exchanged.
Do you need Court of Protection permission to challenge P’s Education, Health & Care Plan (EHCP)?
Yes: the re: ACC judgment definition of litigation includes disputes about the local authority’s provision of education, health & social care to children and young adults. The Deputy needs to seek permission from the Court of Protection before making an application to the First-tier Tribunal for Special Educational Needs and Disability to resolve the dispute.
As Deputy, can you still use P’s money to pay for legal advice?
Yes: the judgment in re: ACC recognises that Deputies may require legal advice about the merits of potential litigation. A Deputy must always act in the best interests of the individual who can no longer make decisions for themselves. Taking legal advice about P’s right to receive adequate health or social care funding to meet their needs will usually be in P’s best interests. The Deputy should use the Annual Deputy Report Form OPG102 to spell out to the Office of the Public Guardian why specialist legal advice, was required and how this protected P’s position.
What other Deputy decisions need permission from the Court of Protection?
The Deputy can only make the decisions that fall within the “general authority” conferred by the Deputyship Order, or any specific authority set out in the initial Order or a later Order. The Deputy will usually need to make an application to the Court of Protection for specific authority, or permission, in order to:
- Purchase a property for P
- Sell P’s property if this authority is not specified in the Deputyship Order
- Make a Will for P or change P’s Will
- Make gifts which fall outside the standard limited exceptions
- Make a decision that creates a potential conflict of interest between P and the Deputy, for example buying P’s property at less than the market value
- Make gratuitous care payments or family care payments in recognition of informal care and support provided by P’s relatives or friends
As lay Deputy, how do you obtain authority or permission from the Court of Protection?
The Deputy needs to make an application to the Court of Protection supported by a witness statement outlining the decisions that need to be made, and addressing the merits and Best Interest argument for P. The application should cover what steps need to be taken, why legal representation is required and the likely costs. The Court tends to have a backlog of applications, and it may take several months to obtain authority, so the Deputy should keep such delays in mind.
If you would like to discuss any aspect of this article further, please contact us on info@ms-solicitors.co.uk or call 01273 609911.
