If someone is mentally incapable of making a particular decision at a particular time and they have not previously made an Enduring or a Lasting Power of Attorney and the decision relates to a formal matter, then the decision should be referred to the Court of Protection. The Court may make the decision itself on the person's behalf, or choose someone else, known as a 'Deputy', to make the decision for them. Either way, the Court will issue an Order so that the matter can be decided with the authority of the Court. These issues may involve making statutory Wills or obtaining orders for the sale of property, or making decisions on the care or health or wellbeing of the person concerned.
Where the Court appoints a Deputy to manage someone's property and financial affairs on an ongoing basis, the Deputy usually has to keep accounts, enter into a security bond and report regularly to the Office of the Public Guardian. The obligations on the Deputy are similar to the obligations on a Trustee, an Attorney or an Executor as the Deputy is entrusted to act in the best interests of the person concerned. The Deputy should therefore be a person who can be trusted completely and can carry out his obligations towards the vulnerable person and to the Court properly.
The Court of Protection charges an initial application fee for the referral of the matter to it. The Office of the Public Guardian charges an ongoing annual fee to cover the cost of supervising the Deputy's work.
We recommend the Law Society’s guide to financial matters for the elderly which contains reference to these issues.