This chapter was added to the APPP in December 2017.
This policy has been written to comply with the requirements of the Mental Capacity Act 2005 (MCA) and is intended to give assistance on dealing with the property and financial affairs of people who lack the mental capacity to do so themselves. Together with the accompanying procedures, it will set out the process to be followed in order to protect the interests of all concerned and will ensure a fair, transparent and consistent approach to the management of the property and affairs of people who lack the mental capacity to do so themselves. It will identify when Appointeeship should be sought from the Department for Work and Pensions (DWP) and when Deputyship should be sought from the Court of Protection. It also gives guidance on who should and should not seek these powers.
Wherever possible, people should manage their own affairs, with support if necessary. For capacity or the lack of it to be established, a formal assessment must be carried out by a suitably qualified person following the principles set out in the MCA. This will usually be the social worker or medical practitioner working most closely with the person. If it is established that the person does lack capacity, enquiries must be made about whether a relevant Power of Attorney is in force. If one is not, then an appointee or deputy must be appointed. Wherever possible, this should be a suitable family member and Hull City Council should only become involved when all options regarding relatives have been considered. The Mental Capacity Act Code of Practice section 8.41 states that ‘paid care workers (for example a care home manager) should not agree to act as a deputy because of the possible conflict of interest’.
The overriding principles of any involvement in the affairs of an adult who lacks capacity must be to act in their best interests at all times and provide high quality individual management of their financial and legal affairs. Each person referred is different and so are their individual needs.
This policy applies to anyone aged 18 or over who is receiving a service provided or commissioned by Hull City Council. It applies to all staff working within Hull City Council, particularly those who have responsibilities and/or duties which involve the managing of customers’ finances. Commissioned service providers should have their own policy and procedure, but these must comply with this one.
A customer may have certain needs and preferences regarding communication. These should be recognised at the support planning stage and arrangements made to accommodate them. This may include information being translated in to another language/easy read format or the use of a translator.
3. Key Principles
People who use Adult Social Care Services should be able to access and use their money as and when they choose. Some people may need support with managing their financial interests, but this support should not override their right to access their money and to decide how they wish to spend it. Someone who lacks the capacity to manage their own money may still have the capacity to decide how to spend it.
Where it is in the person’s best interest his / her family should be encouraged to provide support in financial matters.
Where regular assistance is provided by Hull City Council staff it must be formally agreed and recorded. If this assistance amounts to financial appointeeship or deputyship, this must be a formal arrangement which complies with relevant guidance and law.
In order to safeguard the interests of everyone it is essential that all decisions and key events are recorded so that there is a clear audit trail.
Decisions about the degree of involvement by the department must be clearly evidenced and regularly reviewed.
4. Management of other People’s Financial Affairs
If it is established that someone lacks capacity to manage their financial affairs, someone must be identified to do this on their behalf.
4.1 Lasting or Enduring Power of Attorney
Enquiries should be made as to whether a valid Power of Attorney for financial matters has been registered with the Court of Protection. If it has, then the holder of the Power of Attorney should notify the Office of the Public Guardian that they intend to begin acting under the Power and take control of the person’s finances.
If the person has no savings or other assets, and their only income is from state benefits, then a suitable person should apply to the DWP for Appointeeship. This will enable them to receive and use the person’s benefits in the person’s best interest. It will not enable them to open a bank account for the person or to draw on any funds within the person’s bank account.
The legal responsibility for deciding whether or not someone is a suitable person rests with the DWP. A suitable person is defined as someone who knows the person well and is willing and able to act in the person’s best interest. People who lack capacity themselves, are bankrupt, subject to drug treatment orders or certain sections of the Mental Health Act are not usually regarded as ‘suitable persons’.
Whenever possible, the appointee should be a member of the customer’s family or a close friend and only if there is no one else available should a care service manager or senior Hull City Council Officer become an Appointee.
If the person has income other than state benefits or has substantial assets, then an application must be made to the Court of Protection for the appointment of a Deputy. The Mental Capacity Act Code of Practice section 8.35 states that ‘Applications to the Court (for Deputyship) are necessary for dealing with cash assets over a specified amount after debts have been paid.’ However, it does not specify what that amount is and there is as yet no case law to define it. Thus, there is currently no absolute definition of the trigger point for deputyship. The Court does not wish to make people destitute through the appointment of a Deputy and so gives guidance that someone should be able to afford to pay the fees for the appointment of a deputy and have assets remaining. Currently, it can cost in the region of £2,500 to appoint and supervise a Deputy, so as a guide, if the person has assets of more than £5,000 then an application for Deputyship should be made. Whenever possible, the deputy should be a member of the customer’s family or a close friend and only if there is no one who is both suitable and willing should Hull City Council apply to become a Public Authority Deputy. The Mental Capacity Act Code of Practice Section 8.41 states that ‘paid care workers (for example a care home manager) should not agree to act as a deputy because of the possible conflict of interest’.
5. The Court of Protection and the Office of the Public Guardian
The Court of Protection is based in London and helps to look after the affairs of people who lack the mental capacity to do so themselves. The Office of the Public Guardian forms part of the Ministry of Justice and acts as the administrative arm of the Court of Protection. The Office of the Public Guardian will supervise Deputies, keep a register of Deputies and people holding powers of attorney and will investigate any complaints about Attorneys or Deputies.
The main aim of the Court of Protection and the Office of the Public Guardian is to promote and protect the financial and social well being of people who lack mental capacity. From a Deputyship point of view, the Court of Protection assists and guides Deputies in their duties. The Order appointing the Deputy will clearly set out what powers and duties they have. Authority should always be sought from the Office of the Public Guardian on major decisions that the Order does not cover. The Office of the Public Guardian will issue directions on the request from a Deputy if appropriate.
6. The Role and Responsibilities of a Public Authority Deputy.
The Office of the Public Guardian has issued Deputy Standards and Assurance Visits Guidance, on the role and responsibilities of a Public Authority Deputy and reviews compliance with this via periodic inspections. In summary, Public Authority Deputies must:
- Secure and protect the person’s finances and assets;
- Maximise the return on the person’s assets;
- Discharge the person’s debts and pay their bills;
- Demonstrate responsible use of assets, rather than asset preservation;
- Make sure the person has a personal allowance which is relevant to their needs;
- Act in the person’s best interest, adhering to what is known of their wishes, feelings and preferences;
- Ensure good governance and clear, complete record keeping;
- Seek advice when necessary from, for example an independent financial advisor, accountant or tax advisor;
- Provide information to the Court of Protection about how the person’s finances have been managed and the costs reclaimed from the person’s estate to do so.