Derbyshire Legal Talk: March 2009
PUBLISHED: 15:20 29 April 2010 | UPDATED: 15:51 20 February 2013
Legal Talk with Nelsons
Question: My mother is elderly and unable to look after herself and requires 24 hour care. She has also lost mental capacity and is incapable of making a Lasting Power of Attorney. How am I able to look after her financial affairs?
ANSWER: If your mother lacks mental capacity she is clearly unable to make a Lasting Power of Attorney and you will need to apply to the Court of Protection for a deputyship to enable you to look after your mother's financial affairs.
Before the application can proceed your mother's consultant or General Practitioner will need to complete a Court of Protection Assessment of Capacity form which must be submitted with your own application. The application fee payable to the Court of Protection is currently 400.
If the Court is satisfied that your mother is unable to make decisions for herself concerning her property and affairs an Order will be made under the Mental Capacity Act 2005 appointing you as Deputy. The Order confers general authority on the Deputy to take possession or control of your mother's property and affairs and to exercise the same powers of management and investment as your mother would herself if she had capacity, subject to any terms and conditions set out in the Order.
The Order will also require you as Deputy to obtain and maintain security and this can be achieved through a Guarantee Bond. The Guarantee Bond is a guarantee to pay any financial losses suffered by your mother arising from your failure to perform your Deputyship duties as directed by the Court of Protection. The premium payable will depend on the size of your mother's estate and is payable annually.
Solicitors' charges for dealing with the application are fixed and are currently 800 plus VAT.
Once the Order has been made you will be issued with Office Copies which you will be able to register with your mother's banks and building societies, the Department for Work and Pensions and any other institutions where your mother holds investments. An annual Deputy Supervision fee is also payable to the Office of the Public Guardian. There are three types of supervision and each attracts a different annual fee which is payable annually in arrears on 31st March.
Type I (highest) carries a supervision fee of 800 per annum
Type II (lower) carries a supervision fee of 175 per annum
Type III (minimal) supervision. There is no fee for this type.
Supervision fees are calculated on a pro-rata basis and the case will be reviewed regularly and the type of supervision allocated may change as circum-stances change although remissions and exemptions are available depending on your mother's annual income.
As Deputy you will also be required to keep statements, vouchers, receipts and other financial records to enable you to submit annual reports to the Office of the Public Guardian.