Lay deputy blog series: I am a deputy - where do I start? Looking to the future

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.).

Below are a couple of considerations:

visiting p

You will be required by the OPG to visit P during your time as deputy. This is requested to be on at least an annual basis to ensure that they are happy with the running of their affairs, their care needs are suitable and to discuss any issues that may have arisen or concerns they may have. This visit may also involve discussing P’s affairs with close family or friends who may be better placed to do so, particularly if P has little or no capacity to engage with you.  

Does P have a Will

You may need to consider whether instruction has been left for after they have passed, in the form of a Will or letter of wishes. It is important to know if instructions have been left for any specific assets, so that these are not disposed of during the management of the deputyship; this may cause issues during the administration of the estate. It is also useful to understand who P has appointed to act as executor(s) of their estate for and if a solicitor has been involved in the drafting of the will. Sometimes it may be difficult to locate the original will so there may be quite a lot of work involved in finding it but it is very important to find the original document.

You may be required to look into P’s post death affairs if they have not already made appropriate arrangements or their circumstances have changed, including potentially making an application to execute a Statutory Will. Having knowledge of any existing documents relating to this will be of great assistance. If you think a Will is required, then an application will need to be made to the Court for authority and we would recommend taking legal advice in order to do this as these applications are not straightforward.

Funeral plans

Has P left any instruction in relation to their burial wishes or wishes for their funeral. This may be in held within the Will itself or in the form of a Letter of Wishes enclosed with the Will. P may have even set up a Funeral Plan with any one of the numerous companies that are available on the market today. If there are any specific wishes that you are aware of, it would be useful to make sure these known and made readily available, you may also need to provide details to their care provider.

Instructing third parties

In light of a recent decision by the Court, commonly referred to as the ACC case, deputies are now required to apply to the COP before instructing professionals to act on behalf of P in litigation or matters relating to welfare. This is a complex matter and has been discussed in other blogs completed by the firm; though this should be considered before instructing third parties on matters, including; conveyancers, legal counsel or other solicitors. If you are unsure, then it is always best to seek professional advice.

Investment

Most orders will authorise the consideration and investment of P’s assets, though do check the order first to make sure. The OPG will expect that a deputy consider investment where P holds substantial funds, though it is advisable to you speak to at least 2 different investment management firms to consider their proposals for managing P’s assets before instructing them. You may also wish to consider some kind of inheritance tax planning, however the law in relation to what will be considered as reasonable and in line with P’s wishes/likely actions if they had capacity are complex. If you are unsure, then please seek professional advice.

Tax returns

You may need to check whether P is required to submit a tax return. This will be based on their level of income and specialist advice should be sought from an accountant if necessary. If you are unsure as to whether a return is even required, an accountant can usually complete a review and provide a report to clarify the position.

Sale and purchase of assets

During the course of the deputyship, you may need to consider the sale or purchase of assets. There are a couple of points to note in relation to this:

• Again, always check the order to see whether you have authority depending on the type of asset. If you do not have authority, then an application to the COP will be required first.
• Carefully consider the reasons for the purchase of an asset and whether this will be for P’s primary use/benefit or in line with P’s previous spending prior to their loss of capacity. There have been many cases where deputies/attorneys have purchased items such as laptops/computers/cars under the guise that they are for P’s benefit/use, to later find that they are required to make a retrospective application for the purchase, requested to reimburse P for the purchase, and/or been removed from their position, as the OPG have considered it not to be in P’s interest or for their benefit. Some items purchased for P but used by you will be allowed, though they need to be justified. If you are unsure, it is best to speak to the OPG first.
• Make sure that any decisions regarding the sale and/or purchase of items are included within the annual report.

further information

If you would like further information or advice about the topic discussed in this blog, please contact Lauren Eyre in the Court of Protection team.

about the author

Lauren deals with the management of deputyships, with a focus on clients diagnosed with dementia and those that have suffered medical negligence resulting in serious brain injuries and long term impairments.