3.8 Overview of the Public Authority Deputyship and Appointeeship Process

1. Introduction

Public Authority Deputyship or appointeeship is intended to protect the financial interests of people aged 18 and over who lack the mental capacity to manage their own finances and for whom no valid Lasting Power of Attorney is in place.

2. Criteria

Public Authority Deputyship or appointeeship may only be considered for people who meet the following criteria:

• the person is aged 18 or over;
• a formal assessment of their mental capacity to manage their own finances has demonstrated they lack the capacity to manage, even when all reasonable forms of support are provided;
• no one holds a valid Power of Attorney empowering them to manage the person’s finances;
• they do not already have a court appointed deputy;
• there is no family member or close friend available who is suitable, willing and able to take on the role of appointee or deputy.

Appointeeship will be sufficient to manage the person’s finances only if their sole source of income is state benefits and they have no other assets or property. If they have other sources of income, or have property and assets worth more than £5,000 an application to the Court of Protection for Public Authority Deputyship must be made.

Two flowcharts have been produced; the first to inform decision making about how to proceed when someone appears to need support with management of their finances, and the second to detail the process of applying to the Court of Protection for Public Authority Deputyship.

Is Public Authority Deputyship or Appointeeship required? A decision making flowchart

Public Authority Deputyship application process

3. Governance

The Public Authority Deputy for Hull City Council is the Director of Adult Social Services, the City Manager for Adult Social Care. The responsibility for the management of Deputyships and appointeeships is shared between Adult Social Care and Shared Services (Cash and Banking) as devolved responsibilities allowed under the Mental Capacity Act 2005 (MCA).

The day to day management of Public Authority Deputyships and appointeeships for individuals is overseen and monitored by the Public Authority Deputyship and appointeeship Operational group which reviews each person annually and contributes to the Deputy’s Annual Report for the Office of the Public Guardian.

Management of the processes is overseen by the Public Authority Deputyship and appointeeship Board which is chaired by the City Manager for Adult Social Care (DASS).

The DASS reports on the status of the process and any outstanding requirements for action to the Corporate Senior Management Team.

4. Summary of Roles and Responsibilities

The social worker is responsible for:

• identifying the need for Public Authority Deputyship or appointeeship. This will include:
  1. conducting an assessment of capacity under the MCA;
  2. ensuring the Best Interests Decision Making Process is followed;
  3. exploring whether there is a family member of close friend who is suitable, willing and able to take on the role;
• completing and disseminating relevant documents during the application process, as directed by Shared Services;
• referring the person for a financial assessment;
• contributing to reviews;
• ensuring people retain property which holds sentimental value when entering residential care;
• making sure the person is able to access their finances to make large and small purchases (including gifts) appropriately and within the legal and guidance frameworks;
• maintaining regular contact with the person, their family, friends and care providers to make sure their needs and wishes are ascertained and met;
• contributing to the process of making a statutory will if required.

Shared Services are responsible for:

• issuing forms in relation to the application process for Public Authority Deputyship or appointeeship and for co-ordinating the process;
• identifying and securing assets, savings and investments;
• notifying banks, other financial institutions and any income provider (e.g. private pension provider) of the court order authorising Deputyship;
• referring person for benefits check;
• maximising the person’s income. This may include:
  1. Seeking independent financial advice;
  2. Recovering money owed to the person;
  3. Seeking property management advice;
• locating the person’s will and co-ordinating the process of making a statutory will if required;
• administering the person’s finances including payment of bills;
• securing and maintaining the person’s property. This will include:
  1. Carrying out regular visits to real estate property to make sure it is secure and well maintained;
  2. Carrying out an inventory of the person’s property;
  3. Arranging storage of moveable property where appropriate;
  4. Ensuring appropriate insurances and certificates (e.g. gas certificates) are in place;
• disposing of the person’s property, under the direction of the operational group and in accordance with the law and with relevant guidance or Court orders;
• terminating tenancy, via court order if necessary;
• contributing to annual reviews for the person;
• completing the Deputy’s annual report;
• carry out regular billing of deputy’s costs.

The Operational group are responsible for:

• carrying out joint reviews for people
• decision making with regard to the disposal of property and applying to the Court to sell major assets (e.g. the person’s house)
• the Public Authority Deputyship and appointeeship Board is responsible for:
  • reviewing the process, policy and procedure in line with the law
  • monitoring the process and making requirements for corrective action if necessary
  • identifying and agreeing the resources necessary for the local authority to fulfil its duties in respect of Public Authority Deputyship and appointeeship.

5. Summary of Fees and Disbursements

The Court of Protection Practice Direction B sets out the fees and disbursements available to Public Authority Deputies. The sums for 2017/18 are summarised below.

• Where proceedings concern someone’s property and affairs, the general rule is that the cost of these is charged to their estate. This includes any fees charged by or disbursements made to a Public Authority Deputy.
• For solicitors’ costs up to and including the date upon which the Court makes an order, the local authority may charge the person an amount not exceeding £950 plus VAT.
• For work up to and including the date upon which the Court makes an order, the local authority may charge the person an amount not exceeding £745.
• An annual management fee is payable to the local authority of an amount not exceeding £775 in the first year and not exceeding £650 in subsequent years. However, if the value of the person’s assets is less than £16,000 the local authority fee is capped at 3.5% of the person’s net assets.
• If the person owns a property, an annual property management fee to payable to cover work involved in preparing the property for sale, instructing agents, conveyancers etc. or the ongoing maintenance of property including management and letting of a rental property if the person is a tenant. The annual property management fee should not exceed £300.
• When a Public Authority Deputy is selling a property on behalf of someone, the local authority can claim a fixed rate fee of 0.15% of the consideration with a minimum sum of £400 and a maximum of £1,670 plus disbursements, to cover the cost of conveying the property.
• To prepare and lodge the annual report to the Office of the Public Guardian, a fee is payable of £216.
• The person’s own funds can be used to pay for specialist services that s/he would be expected to pay if s/he had retained capacity such as conveyancing, obtaining expert valuations and obtaining investment advice.
• Public Authority Deputies are allowed the fixed rate of £40 per hour for travel costs.

6. Appeals

6.1 Appeals against appointeeship

There are four circumstances where an appointeeship can be revoked:

• if the appointee does not act appropriately within the terms under which the appointment was granted, the DWP can revoke their authority;
• if there is sufficient evidence that the person is capable of acting for themselves and does not need an appointee to act for them;
• where the appointee himself becomes incapable. The Secretary of State should take normal action to appoint a replacement;
• where the appointee no longer wishes to continue.

6.1.1 Appointee is not acting appropriately

If the evidence of mismanagement is overwhelming and unequivocal, then the DWP will suspend payment of benefit immediately whilst the case is further investigated. In cases where the evidence is not clear, benefits may continue to be paid pending the outcome of the investigation. If the investigation finds that the appointee has not acted appropriately, the appointeeship will be revoked and further action, including referral to the Office of the Public Guardian or the police will be considered.

6.1.2 There is sufficient evidence that the person is capable of acting for him / herself

The person subject to appointeeship can appeal to the DWP for the appointeeship to be revoked and to assume control over their own benefits. The request should be made in writing to the DWP, who will arrange for an assessor to visit the person. The assessor will also approach the appointee for their views, and will make the decision whether or not to revoke the appointeeship. Where the City Council wishes to contest the revocation, written evidence supporting this view should be forwarded to the DWP and if necessary, a case conference should be held with all parties represented including the DWP. The final decision is for the DWP to make.

6.1.3 Incapacity of corporate appointee, or wish to discontinue

Neither of these scenarios should apply to a local authority appointeeship, as responsibility can be delegated to a range of suitable officers.

6.1.4 Process of appealing

The person wishing to appeal must contact the DWP, initially by telephone on one of the numbers given below. The DWP will then take the steps outlined above.

Personal Independence Payments helpline 0800 9172222
Disability related benefits helpline:

• (born before 8.4.48) 0345 6056055;
• (born after 8.4.48) 0345 7123456

State pension helpline 0345 6060265
Tax credits helpline 0345 3003900
All other benefits Via Jobcentre Plus

6.2 Appeal against Public Authority Deputyship

During the application process for Public Authority Deputyship, the person or their representative can inform the Court of Protection of their objection to deputyship per se, or to Public Authority Deputyship and the Court will make its decision. Following the initial ruling, if the person or their representative wishes to appoint a different deputy, or if the person believes they have regained capacity and wish to resume control of their finances, an appeal to the Court for a new ruling must be made.