2 The Team Based in the Civic Office, within Adult & Community Services Based in Modernisation and CommissioningPart of the Safeguarding Adults Team
3 Team PurposeTo support vulnerable adults with the management of their financial affairs,working with colleagues from the public and independent sectors to facilitatetheir timely discharge from hospital or prevent their re-admission to hospitalor long term residential or nursing care and secure a range of servicesappropriate to their needs and wishes to enable them to live as independently as possible To make funeral arrangements in accordance withSection 46(1) of the Public Health, Control of DiseasesAct 1984 where there is no-one else able or willing to do this.To protect the property of service users who are admitted tohospital or residential or nursing care on an unplanned basisin accordance with section 48 of the National Assistance Act 1948.To support the investigation of financial abuse, working with thePolice, health, the Office of the Public Guardian and social care colleagues
4 When will the team get involved? Criteria for offering support:P lacks capacity to manage his own financial affairs and has not previously made arrangements for someone else to act for him when he became incapacitatedP had made arrangements for another person to act for him when he became incapacitated but that person is not willing/able or suitable to actP is capacitated but referral has been made to the team following a safeguarding adults investigationP lacks capacity to manage his own financial affairs and a family member or close friend is willing to apply for Deputyship but is confused about how to do this
5 Supporting Financial Management Options:AppointeeshipLasting Power of Attorney (LPA) for Property and Financial AffairsDeputyship (for Property and Financial Affairs)In exceptional circumstances the team may be able to offer information and guidance and/or limited support to service users who are mentally capacitated in relation to decision making involving financial matters but are susceptible to exploitation by third parties but will not assume responsibility for the management of a capacitated adults finances
6 Supporting Financial Management Appointeeship – things to rememberA Visiting Officer from the DWP determines that P needs an appointee because he lacks the capacity to manage his own benefits – DWP assessment of capacityThe LA can only apply to act – the final decision rests with the DWP and we cannot assume that our application will be successfulIf there is an existing appointee DWP will usually seek to get him to relinquish his responsibilitiesThe DWP (through the Secretary of State) has the power to revoke appointeeships (even where the appointee also has EPA/LPA or is a court appointed Deputy) but they sometimes “forget” this or seem reluctant to take actionAn appointee only has the authority to manage P’s state benefits – though some occupational pension funds (MPS) acknowledge the appointee and will also pay the P’s occupational pension to the appointeeBanks and other financial institutions and other organisations (e.g. utility companies) do not recognise the appointee and will not act on any requests made by him to redirect mail, suspend payments etc.
7 Supporting Financial Management An appointee cannot:Enter into a tenancy agreement on behalf of PTerminate a tenancy agreement on behalf of PAccess bank or building society accounts already held by P (though an appointee can close a Post Office Counter Account – POCA)Access information held by the DWP about a previous appointee
8 Supporting Financial Management Enduring Power of Attorney – points to rememberIt is no longer possible to execute an EPAIt is still possible to register an EPA that was executed prior to the 1 October 2007P is the Donor – he should have decided who he wanted to act on his behalf in the event of him losing capacity; the person appointed to act as Attorney should not have been the one to have instructed a solicitor to complete the deedA registered EPA only gives the attorney the authority to manage P’s financial affairs – it does not give him authority to make health and welfare decisions (though he should be consulted as part of the best interest decision making process – unless there are grounds not to consult with him)A registered EPA can only be revoked by the Court of ProtectionAn unregistered EPA can be revoked by the Donor – as long as he still retains the capacity
9 Supporting Financial Management Lasting Power of Attorney – points to rememberP is the Donor – he should have decided who he wanted to act on his behalf in the event of him losing capacity; the person appointed to act as Attorney should not have been the one to have instructed a solicitor to complete the deedP can execute an LPA without getting advice from a solicitorA registered LPA can only be revoked by the Court of ProtectionAn unregistered LPA can be revoked by the Donor – as long as he still retains the capacity to do soA Donor can execute an LPA for Property and Financial Affairs and/or for Health and Welfare decisions – but not using one formA donor can appoint someone as his LPA for H&W and a different person as his LPA for P&FAAn LPA for H&W does not have the authority to make decisions about P’s” P&F (and vice versa)
10 Supporting Financial Management Deputyship – Points to RememberDeputies are appointed by the Court of ProtectionThe Court of Protection can appoint someone to act as Deputy for Health and Welfare and/or for Property and Financial AffairsThe Court of Protection does not have to appoint the same person to act as Deputy for H&W and P&FAThe Court of Protection will consider applications from: family members, friends (known as Lay Deputies) or from professional Deputies – solicitors or Local Authorities or could appoint a Panel DeputyThe Court of Protection can – and will – revoke a Deputyship Order if the Deputy is considered not to be acting in P’s best interests (even if the Deputy is a Senior Officer of a Local Authority)Court appointed Deputies are supervised by the Office of the Public Guardian (OPG)P must have been assessed has lacking the capacity to manage his financial affairs (specific aspects) before the Court will consider an application for Deputyship
11 DeputyshipThe application for Deputyship has to be sent to the Court of Protection and will be considered by a High Court JudgeThe application process is “bureaucratic” because it forms part of a formal court process, papers have to be served on P and on other interested parties in order to give them an opportunity to object to the appointmentThe main forms used to apply for Deputyship for H&W and P&F are the same – e.g. COP1, COP3, COP4, COP2, COP9, COP24Additional information pertinent to the application is given on either the COP 1A (P&FA) or COP 1B (H&W)Applications can be contested – by P himself, by other family members or any other significant person notified of the applicationThe Court of Protection prefers to receive applications from family members but it is acknowledged that in some cases it will be necessary for a professional deputy to be appointed – either because there is no one willing or able to support P in this way or because it would not be appropriate for that person to be appointed
12 DeputyshipA Court appointed Deputy can, with the proper authority of the Court, manage P’s financial affairs as though he were PThe Deputy must always work within the authority given by the Court and may need to reapply to the Court for further powers if the original application does not give him the authority that he needs – e.g. original application asked for permission to manage investments but not to buy or sell property, if the Deputy now wants to purchase a bungalow for P a new application will have to be made to the Court (and another fee paid!)The Deputy, even with an Extended Order from the Court, does not have the authority to execute a will on behalf of P – though the Deputy can instigate a statutory will using the Official Solicitor
13 DeputyshipAn application for Deputyship usually takes 21 weeks to process by the Court of Protection – assuming that the application is complete on submission and is uncontestedIf the application is contested a hearing will be held in front of a Judge for him to make a determination about what is in the best interests of POnce appointed the Deputy is subject to supervision by the OPG– and will be required to report to the OPG in accordance with the supervision level set by the CourtThe annual report submitted will need to identify what significant decisions have been taken during the year on behalf of P with supporting evidence provided to show that the Deputy has acted in the P’s best interests
14 The Office of the Public Guardian The OPG maintains a register of Court appointed Deputies, registered EPA’s and registered LPA’sThe OPG supervises Deputies – the supervision level will be determined based on an assessment of the “risks” in this case (i.e. the value of the patient’s estate, family conflicts, previous history of financial abuse, knowledge/experience of the Deputy appointed etc.)The OPG has an investigations team that will investigate allegations of financial abuse by registered EPA’s, registered LPA’s and DeputiesThe Public Guardian can and will apply to the Court of Protection to request that an EPA/LPA or Deputyship Order be revoked following an investigation into the conduct of any one of these appointments.
15 The Office of the Public Guardian Searching the RegisterIf a person states that he has registered EPA/LPA or is a Court appointed Deputy this can be checked by searching the register held by the OPGThe service is free to Local AuthoritiesComplete an OPG100 and fax to the OPG if you want a speedier response - fax no:Form OPG100 can be downloaded from:Remember to ask the OPG to conduct both a first and second tier search – this will ensure that any pending applications for registrations or Deputyship are also checked not just the actual register
16 Safeguarding & The Court of Protection The primary purpose of the Court of Protection (COP) is, through the appointment of Deputies who are then supervised by the Office of the Public Guardian (OPG), to protect the financial affairs of vulnerable, incapacitated adults who have failed to make provision for their incapacity.
17 Appointment of a Deputy The COP will consider applications for Deputyship from: a) members of the public – referred to as “Lay Deputies” b) solicitors acting on behalf of a family member or friend – referred to as “Professional Deputies” c) local authorities – referred to as “LA Deputies” or d) from a solicitor instructed by the OPG/COP where there is no-one to instruct a Professional Deputy – these are chosen from a list of solicitors known to the OPG/COP and referred to as “Panel Deputies”
18 Why apply for Deputyship? Patient lacks the capacity to manage his financial affairsPatient has assets which need to be protectedPatient has assets which need to be accessedPatient has income which needs to be accessedPatient’s financial situation is unclear and creditors are unwilling to provide informationTo enter into tenancy agreements on behalf of a service user who lacks the capacity to understand the tenancy agreement
19 Unplanned Admissions to Hospital or Residential Care – Some Questions P’s capacity – is he able to make arrangements for the protection of his own property? Has he planned for such an event and appointed someone to act as his Power of Attorney (EPA/LPA)? Is this person able/willing/suitable to act on P’s behalf? Has the EPA/LPA been registered? If it isn’t registered the attorney has no authority to act until such time as it is If he lacks capacity who will pay his bills? How will they access his funds? How secure will his tenancy be if he defaults on his rent? How will his creditors know where he is? How will the people that he owes money to know where he is and why he maybe can’t pay bills at the moment? What things might be being sent to his home – giros, new bank cards and/or PIN numbers or merely just post that might allow someone else to “steal” his identity Who will know if a third party orders goods using P’s credit/debit card and arranges for it to be sent to his address where they can collect it from? Who else might move into the property? Who might be held liable if P lacks capacity and no one protects his property whilst he is in hospital and he loses his home? Who will the public blame?
20 Some Final ThoughtsProtection of Property - The Benefits of Conducting a SearchIt provides protection for P– many people leave cash and other valuables in their property It provides protection for other people entering the property whilst P is in hospital – e.g. social worker and colleague may visit to pick up clothing, toiletries etc. and may risk being accused of stealing from, or damaging the propertyIt provides protection for the local authority from complaints that it has failed to protect a vulnerable adult – e.g. if someone else has gained access to the property and stolen items (or P’s identity)It provides protection for a third party who may have had access to the property and may be vulnerable to accusations of theft etc. from other people
21 Case StudyTony was registered disabled (moderate physical disability) and lived independently in his own home which was subject to a mortgage. He was divorced and worked part time and claimed benefits to supplement his income. He suffered a major head trauma and was admitted to an acute hospital where he stayed for several months.Friends visited him in hospital but it did not appear that he had any close family.
22 What were the issues?Capacity assessment – Tony’s condition meant that he was in a comaWho was protecting Tony’s assets whilst he was in a coma and not able to instruct anyone to act for him?What support could Tony’s friends or “aunt” offer him in respect of his financial affairs?What options were there to support Tony in relation to his financial affairs?
23 Issues – cont.Capacity assessment – although in a coma a formal assessment was still necessary to give basis for any best interest decisions made thereafterTony was unable to appoint anyone to act for him because of his medical condition and had not made others arrangements prior to him becoming ill for someone to act for him (e.g. EPA/LPA)His creditors refused to communicate with his friends and “aunt” because of the Data Protection ActOnly option at that time was for someone to step in and apply for Deputyship (although the LA did have a duty under the NAA 1948 to protect his property – but hadn’t been able to do this because the LA had not been made aware of his admission to hospital – we’re good but we’re not psychic!)
24 Why Deputyship?Someone could apply to become appointee for Tony – but this would only give the appointee access to his state benefits and without information about Tony’s financial affairs a third party might not have been able to apply for the appropriate benefitsCreditors will not communicate with an appointee – only with their customer or a third party formally appointed to administer their financial affairs through either a registered EPA/LPA or Deputyship OrderA Deputyship Order will give the Deputy authority to investigate P’s financial affairs – i.e. can use it to write to banks, building societies, utility companies etc. to obtain information about the patient – without this it is often impossible to fit the “jigsaw” pieces together and put together an action plan for supporting P with managing his finances
25 What happened next?After some time he was transferred back to DRI and ward staff contacted the Social Work team to arrange his discharge to a nursing home.The social worker contacted SAPAT because Tony’s friends told her that his finances were “in a bit of a mess” – with the mortgage company threatening to repossess his home and a mobile telephone company threatening to send in the bailiffs!
26 What could have happened? Friends might not have been trustworthy and could have sold or taken the contents of Tony’s homeThe property could have been vandalisedThe property could have suffered major structural damage (fire/flood) – insurance cover?The mortgage company could have repossessed the property and disposed of all of Tony’s other belongingsTony could have had a CCJ registered against him – credit rating, employment opportunitiesHow could the statutory agencies demonstrate how they safeguarded Tony in these circumstances?What implications might there have been for the statutory agencies involved in Tony’s treatment and care and/or for individual members of staff?
27 What did happen? Discussion with family/friends re: Deputyship SAPAT offered to support a third party through the application process but family/friends declined to make the applicationKeys acquired by SAPAT and full inventory taken – protection for Tony, for his friends and for LASAPAT made application – including request for urgent directions to be able to investigate Tony’s financial affairs and speak to all his creditors to delay or suspend any recovery action already instigatedProperty insured – with regular “check” visitsDiscussion with all creditors - pending Deputyship & reminder of their obligations re: duty of care and need to comply with DDA
28 What happened next?Urgent directions received – repossession suspendedBenefits claimedClaim submitted against mortgage protection insurance – mortgage arrears clearedOverpayment of Tax Credits written off following appeal from SAPATCreditors appraised of situation and debts adjusted (costs and charges waived)Personal items taken to Tony (by this time he was no longer in a coma and could benefit from having his TV and sound system with him)Extended Order received from the Court of ProtectionSAPAT participation in reviews and discussions re: future care – not H&W deputyship but as Deputy for Property & Financial Affairs decisions taken could impact on health/welfare issues