Blog
Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
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 same two-stage capacity test (mentioned in Blog 1) is used, but there are also additional factors to consider.
The ability to manage property and financial affairs involves multiple ongoing acts, such as paying for shopping, managing bank accounts, maintaining a property and paying bills on time. The degree of capacity must relate to all of an individual’s circumstances, including the complexity and importance of the property and affairs to be managed. Distinction should also be drawn between capacity to manage day-to-day affairs and capacity to manage different amounts of money and, with this, qualities such as impulsiveness and volatility are also relevant.
For example, someone with a brain injury may have capacity to manage a small amount of income and pay bills on a day-to-day basis, but may not have capacity to manage a substantial award of damages that are due to be paid to them. The complexity and importance of that amount of money and the potential for them to be impulsive with that money should be considered.
When assessing an individual’s capacity to manage their property and affairs, certain questions ought to be considered, including: Can they budget? Do they know how much money they have? Do they know who they bank with? Do they know where they live? Can they pay bills on time?
What happens if an individual lacks capacity to manage their property and affairs?
If an individual has an existing Lasting Power of Attorney (“LPA”) for Property and Financial Affairs in place, that has been registered with the Office of the Public Guardian (“OPG”), their appointed attorney(s) can make decisions relating to their property and financial affairs on their behalf.
However, not everyone has an LPA in place. If this is the case, an application will need to be made to the Court of Protection to appoint a Deputy to manage the individual’s property and financial affairs. This can either be a lay Deputy, such as a family member or friend, or a professional Deputy, such as a solicitor.
How we can help
We have a wealth of experience making applications to the Court of Protection for Property and Affairs Deputies and our Court of Protection Partners, Simon Hardy and Jemma Garside also act as professional Deputies. If this is something you need assistance with, please contact us.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Questions?
or call +44 (0)20 7814 1200
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