Attorney/Deputy: How to respond to a query from the OPG

In this blog we consider whether a pre-nuptial agreement is a good option to help protect the estates of vulnerable individuals in the event that their marriage should come to an end.

This case study highlights the inspiring journey of a young man, Louis who was born with cerebral palsy (CP) and with the support of his Deputy, Deputyship team and family has transformed his passion for dogs into a small business, overcoming numerous challenges and creating a successful venture. His story not only exemplifies the power of perseverance and support but also showcases how individuals with disabilities can thrive in the business world with the right resources and mindset.

The Child Brain Injury Trust reports that every 90 seconds, someone in the UK is admitted to hospital with an acquired brain injury, and every 15 minutes, a child in the UK acquires a brain injury. While many will make a full recovery, for others, this may impact on their ability to make certain decisions as adults.

For a Will to be valid, amongst other things, the person making the Will (known as the “testator”) must be of “sound mind”.

The test for capacity to enter a prenuptial agreement is the same as the normal test for capacity (mentioned in Blog 1) and the individual must be capable of understanding their assets and the nature and effects of the contract they are entering into.

An executor/executrix is a person named in a Will who is responsible for carrying out the instructions in a person's Will and administering their estate. Executors can have a number of responsibilities following someone’s death, including: securing, insuring and clearing the deceased’s property, collecting in all the deceased’s assets, paying outstanding bills, distributing the estate, arranging the funeral and applying for probate.

When a trust is created, the person setting-up the trust (known as the “settlor”) usually appoints trustees who become the legal owners of the assets in the trust, which they hold for the benefit of others (known as the “beneficiaries”). For example, when a person dies, a trustee may distribute capital and income from the deceased’s assets that are held in a Will trust, to the people named as beneficiaries in the deceased’s Will.

Capacity to litigate involves an adult who is a party (or intended party) to proceedings in court.

A Lasting Power of Attorney (“LPA”) is a formal document that, once registered by the Office of the Public Guardian (“OPG”) authorises others, known as “attorneys”, to act on behalf of another who is unable to make decisions for themselves. 

A gift can be anything of value, such as cash, personal possessions and property. If a person chooses to dispose of an asset for less than it is worth this is also considered to be a fit. The act of giving a gift is typically done to express care, appreciation, celebration or goodwill. Gifts are often exchanged during special occasions such as birthdays, weddings, anniversaries and customary occasions, but they can also be given spontaneously as a gesture of kindness or generosity.

An assessment to determine whether an individual has capacity to manage their property and financial affairs is required when an individual’s capacity is in doubt and they need to make decisions relating to their property and finances. For example, they may want to sell or purchase a property, need to manage an award of damages or need to manage their overall affairs.

The question of how care for a parent is funded can be a pressing one that has the potential to cause stress and concern. 

Now you have an idea of the full scope of your role as deputy, here are a few cautionary comments based on our years of experience of working within the field of Court of Protection.

It is not unreasonable for gifts to be made to those close to the Protected Party ("P") during their life time and this can be in a number of ways, whether this be customary, practical or just a one-off gesture. 

Buying and selling property is one of the biggest tasks a deputy may be faced with whilst managing the Protected Party’s (‘P’) affairs. The selling of a property may be the only way to access funds that are so desperately needed to pay for P’s ongoing expenses. P may be downsizing and both the sale and purchase of a property may be required. P may need to purchase a more suitable property for their needs as their condition evolves. The property may not only be for P but for partners, children, other family members, carer’s and those involved in P’s daily lives.

If P owns a property, there are a number of additional factors to consider and matters that may arise throughout the management of the deputyship.

In additional to the initial set up tasks and ongoing annual requirements, a deputy may want to consider the bigger picture to ensure P’s ‘estate’ (essentially everything that they legally own; including cash, property, land, investments etc.)

Your application to be a deputy is successful and you have now received the final Order from the Court of Protection (“COP”) appointing you as such. You have/have been provided with a catalogue of documents and financial paperwork; or you may have been provided with nothing at all. You may have already been contacted by various organisations asking for information, or even payment for services. One of the first questions that I am sure may be crossing your mind - where do I start?

Firstly, I must point out that there are two types of deputyship. The distinction between them is important as there are clear rules as to the decisions that can be made under each.

So, you have made the decision to take on the role of deputy for a loved one, friend or even a neighbour, and it’s not a role to be taken lightly. Though it may seem daunting at first, the process can be made less fear inducing by ensuring you follow some simple procedural and practical steps. This series will look to set out the different steps that must be followed and what you can and should do in each one. If you still have any concerns then advice can always be sought from professionals.