Advice on ensuring that your duties as an attorney or deputy are adhered to properly
If you are helping a friend or relative who is ill or vulnerable in their later life, whether formally or informally, there are various official bodies that you might encounter with whom you will need to liaise to assist you with their affairs.
Whilst some organisations might be happy to liaise with you on an informal basis, many will not. Even those bodies which are willing to discuss their affairs will require proper authority before allowing you to make any decisions for them.
In addition to their solicitor, the main organisations that you might need to contact during this stage include the Office of the Public Guardian, the Court of Protection and the Official Solicitor. You may also have to deal with the NHS and your local authority.
Making sure you have the right authority
If you know that your friend or relative has planned ahead by making a power of attorney, you will need to locate the original. This might be stored with their papers at home, but it is more likely that their solicitor will be holding it for safekeeping. If so, they will need identification from you to release the original. Some solicitors will also require either a signed letter of authority or, if they no longer have mental capacity, some form of medical proof of their lack of capacity.
Office of the Public Guardian
The Office of the Public Guardian is responsible for registering powers of attorney and maintaining records of all the registered powers of attorney in England and Wales.
If you are uncertain about whether your friend or relative has made a power of attorney, it is possible to request a search of the Office of the Public Guardian’s records. This requires a specific form, which our solicitors can assist you to complete. If you already know that a power of attorney exists, then you might need to liaise with the Office of the Public Guardian to register it. Again, this is a process with which our solicitors can assist. The process is dependent on the type of power of attorney:
- if they made an enduring power of attorney, then it will be up to the attorneys to register this; or
- if they made a lasting power of attorney then this may already be registered.
You should check the position with a solicitor to ensure you are fully aware of what is required of you.
The Court of Protection
The Court of Protection steps in when somebody loses mental capacity without having made a power of attorney, or when a power of attorney has been misused.
Whilst establishing authority to act, you might need to be in touch with the Court of Protection. An application to the Court of Protection, whether a general application to be appointed to manage someone’s affairs or an application asking the court to make a specific decision on the person’s behalf, is a very serious matter and one which requires sufficient evidence and various prescribed application forms. Our solicitors are experienced and knowledgeable in the most appropriate way in which to make a successful application to the Court of Protection.
In some circumstances, the Court of Protection may decide that it is appropriate to appoint a panel deputy to deal with your friend or relative’s affairs, either temporarily or permanently. For example, if there is any disagreement among the family as to who should be appointed, or if the person’s financial affairs are particularly onerous and would be better handled by a professional, or if there has been some evidence of financial abuse.
If so, then you will also need to liaise with the panel deputy. Panel deputies are solicitors who have been specifically vetted and chosen by the Court of Protection on the basis of their experience and knowledge. The panel deputy would be acting on behalf of your friend or relative, and you would be free to appoint your own solicitor to act for you, who could also liaise with the panel deputy on your behalf.
The Official Solicitor
The Official Solicitor’s Office is a governmental body which acts on behalf of those who are vulnerable and unable to instruct a solicitor of their own volition.
If the Court of Protection does need to become involved, the Official Solicitor may also be appointed. This is often the case when an application is being made to remove an attorney for wrongdoing, or if there are other particular safeguarding concerns.
If the Official Solicitor is appointed, they will be appointed, rather than you, but you will need to liaise and negotiate with them, and our solicitors can assist you with this. The Official Solicitor’s Office is an independent government body. The Court of Protection refers matters to the Official Solicitor’s Office and, within the organisation, a suitable solicitor is chosen and appointed to act on behalf of your friend or relative. If the appointment of the Official Solicitor is deemed necessary, the cost of this service will be met from your friend or relative’s funds.
Acting once authority is established
If you are appointed as attorney or deputy, you would then need to deal with various organisations to ensure their affairs continue to run smoothly and that their needs are taken care of. This would include financial institutions, such as their existing banks and any investment companies, as well as potentially the Land Registry and conveyancing solicitor if they have a property that needs to be sold, and a financial advisor who specialises in later life clients to ensure that their funds are securely and appropriately invested in a risk-averse way that will yield the best possible returns.
Whilst their financial position is important to ensure that they have access to suitable care, if they are ill or vulnerable you may also be concerned about the health organisations you need to contact.
Local authority – social services
Depending upon their financial circumstances, their local authority may be involved in ensuring that they are placed in a suitable care home or that suitable at-home care is provided. The local authority will also be key in establishing whether funding for their care is available.
Provided you have the relevant authority, you are entitled to attend any meetings with the local authority when financial support is discussed.
Before attending any care funding meetings, you should seek advice from a solicitor so that you are fully aware of their rights and options. If required, you are also entitled to request that your solicitor attends the meeting with you.
National Health Service (NHS)
Similarly, the NHS may be involved in discussions and decisions surrounding care funding. NHS care funding is available in limited circumstances, but you should obtain legal advice and explore whether this applies. You may also be required to attend meetings with NHS doctors, or other medical staff, to discuss aspects of care and how this should be managed. If you are making decisions on their behalf, it is important that you ensure you are involved in the process all the way along so that you can make decisions on a fully informed basis and one that is in their best interests.
How we can help
Acting for someone when they are ill or vulnerable can be very rewarding, but it can also be an onerous responsibility. Our solicitors can help you to ensure that your duties as an attorney or deputy are adhered to properly and fully, and that your friend or relative is cared for in the best possible manner.
For further information, please contact Fiona Prince, in the Wills, Trusts and Probate team on 01480 702207 or email [email protected].
Fiona Prince LLB TEP, Associate
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