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Appointee and Deputyship Procedure

1. Using this Procedure

This procedure should be used when a person may require support to manage their property or affairs and the need for a corporate appointeeship or Deputyship is being considered.

The procedures will support you to understand:

  1. The role of a corporate appointee;
  2. The role of a Deputy;
  3. How to refer to the Safeguarding Finance Team; and
  4. Your own role and the role of the Safeguarding Finance Team in making the relevant application.

Although this procedure may be helpful to those people based within the Safeguarding Finance Team, it does not provide specific guidance to support the functions and processes of the team. Anyone based in the team should refer to available local processes at all times.

2. The Role of an Appointee

An appointee is responsible for making and maintaining any benefit claims on behalf of a person who cannot do so because:

  1. They lack capacity to claim or manage benefits; or
  2. Their physical disability prevents them from being able to do so (see note below).

Note: Even though an appointee can manage the benefits of a person with capacity the policy in Telford and Wrekin is to only act as a corporate appointee if a person lacks capacity. Therefore, if a person has capacity appointeeship should be informal or arranged through a solicitor.

The appointee role includes:

  1. Claiming all DWP benefits that the person may be entitled to;
  2. Collecting all benefits into a designated account;
  3. Reporting changes in circumstances; and
  4. Managing and spending benefits in the Best Interests of a person who lacks capacity.

For the purpose of appointeeship the main benefits are:

  1. Attendance Allowance;
  2. Disability Living Allowance;
  3. Employment Support Allowance;
  4. State Pension and pension credit; and
  5. Personal Independence Payment.

3. The Role of a Deputy

A Deputy is a person or organisation appointed by the Court of Protection to:

  1. Make specific decisions as set out by the Court; and
  2. Take steps to implement those decisions; when
  3. The person lacks capacity to make that decision for themselves.

A Deputy can be appointed to make decisions about:

  • Property and affairs;
  • Health and welfare (see note below); or
  • Both of the above.

Note: Even though a Deputy can be appointed to make decisions about Health and Welfare, the policy in Telford and Wrekin is that the Safeguarding Finance Team can only act as a Property and Affairs Deputy. If an application relates to Health and Welfare this should be made by a family member or Solicitor.

Some examples of things that a Property and Affairs Deputy can do as part of their role include:

  1. Managing money;
  2. Claiming benefits and pension;
  3. Managing bank accounts and utilities;
  4. Managing debt;
  5. Buying and selling property;
  6. Holding a tenancy;
  7. Management of property (e.g. carrying out maintenance work);
  8. Managing a business or trade (see note below).

Note: The Safeguarding Finance Team is not able to provide support to manage a business or trade. As such if this is the support required the Deputyship would need to be informal or arranged through a Solicitor.

A Deputy must apply the 5 statutory principles of the Mental Capacity Act 2005 and must only make a decision that is in the Best Interests of the person.

Further information about Deputies can be found in the Mental Capacity Act 2005 Resource and Practice Toolkit by clicking here.

4. Before Making a Referral to the Safeguarding Finance Team

Referral Criteria

The Safeguarding Finance Team applies specific criteria and can only accept a referral that meets those criteria.

Corporate Appointeeships

Criteria Guidance/Action required
The person must have a care and support service funded by Telford & Wrekin  
The person must lack capacity to manage their own financial affairs and the referral is in their Best Interests Mental Capacity must be formally assessed and a Best Interests decision made
(see below for guidance)
There is nobody else already authorised to act You must establish that there is not already an appointee, Deputy or Donee of a Lasting Power of Attorney authorised to act
(see below for guidance)
There is nobody else able to act You must explore whether any family members or friends are willing and able to act
(see below for guidance)

Deputyships

Criteria Guidance/Action required

The person must have a care and support service funded by Telford & Wrekin

 
The person must lack capacity to manage their own financial affairs and the referral is in their Best Interests Mental Capacity must be formally assessed and a Best Interests decision made
There is nobody else already authorised to act You must establish that there is not already Deputy or Donee of a Lasting Power of Attorney authorised to act
(see below for guidance)
There is nobody else able to act You must explore whether any family members or friends are willing and able to act
(see below for guidance)
That there is no Solicitor able to act You must identify whether there is a Solicitor known to the person, and explore whether they are able to act
That an appointeeship would not be more appropriate If the person has no capital and is only in receipt of state benefits these can normally be managed through an appointeeship

Establishing Mental Capacity

Guidance on assessing capacity and making a Best Interests decision can be found in the Mental Capacity Act 2005 Resource and Practice Toolkit by clicking here.

Fluctuating Capacity

If a person has fluctuating capacity an Appointeeship or Deputyship may still be appropriate to safeguard the person during periods when they lack capacity. However, the policy in Telford and Wrekin is to only act as a corporate appointee or Deputy if a person lacks capacity and this does not fluctuate. Therefore, if a person has fluctuating capacity appointeeship or Deputyship should be informal or arranged through a solicitor.

Establishing if there is a Deputy or Donee of a Power of Attorney

It is important to establish the existence of a Deputy or Donee of a Power of Attorney (Lasting or Enduring) because if they do exist and have the authority to act upon the matter in question they have a legal requirement to do so unless the Court of Protection has given them permission to delegate this to someone else.

How to Establish

Sometimes there will be evidence already recorded, or available in the person's home that confirms there is a Deputy or Donee of a Lasting Power of Attorney authorised to act. However if this cannot be verified either way you should complete form OPG100 to request this information from the Office of the Public Guardian.

Click here to access the latest OPG100 form, which can be printed or completed electronically.

If there is a Deputy or Donee of a Lasting Power of Attorney

If there is a Deputy or Donee of a Lasting Power of Attorney you should establish whether they are authorised to act on the matter in question.

If they are they should make arrangements do so unless the Court of Protection has given them permission to delegate the role to someone else.

If not, the referral can be made to the Safeguarding Finance Team so long as:

  1. All other criteria are met; and
  2. The Deputy or Donee agrees that the referral is in the person's Best Interests (if they disagree the matter must be decided by the Court of Protection).

If a Deputy or Donee is declining to act when they have a responsibility to do so, or has asked another person to act on their behalf you must take steps to:

  1. Report this to the Office of the Public Guardian; and
  2. In the case of a Deputy, apply to the Court of Protection to make a determination about the matter.

If there is already an appointee

If there is already an appointee you should not make a referral to the Safeguarding Finance Team unless:

  1. The appointee is no longer able to act; or
  2. The appointee is not fulfilling the role as required; and
  3. The appointee would likely not be able to do so, even with support.

If the appointee is no longer able to act

If a family member or friend is no longer able to act they must relinquish the role before a referral is made to the Safeguarding Finance Team.

To relinquish the role they must send a notification of intention letter to the DWP setting out:

  1. Their name;
  2. The name of the person claiming benefits;
  3. That they wish to relinquish the appointeeship role;
  4. When they wish to relinquish the appointeeship role from; and
  5. Be signed.

When the DWP have written to the appointee confirming they are no longer authorised to act a referral to the Safeguarding Finance Team can be made.

If an appointee wishes to continue the role

If a family member or friend already acting as an appointee wishes to continue the role the referral to the Safeguarding Finance Team should only be made if:

  1. They are not meeting the requirements of the role; and
  2. The appointee would likely not be able to do so, even with support.

Before proceeding to make the referral you should consider whether it would be more appropriate to:

  1. Provide them with information and advice to support them to meet the requirements of the role; and
  2. Monitor how they are carrying out the role; before
  3. Making a referral to the Safeguarding Finance Team.

If it is not appropriate to provide support (or if the provision of support has not enabled them to meet the requirements of the role) you should explain:

  1. That you will be making a referral to the Safeguarding Finance Team for them to consider the best course of action; and
  2. That it is likely a letter will be written to the DWP disclosing the concerns and recommending they are relinquished from their role;
  3. That the DWP will consider the information provided to them to make the final decision; and
  4. Depending on the nature of the concerns, the DWP may suspend the payment of benefits pending their decision.

You should then proceed to make the referral to the Safeguarding Finance Team.

In the referral you should:

  1. State the name of the current appointee;
  2. Describe the concerns that you have about their ability to meet the requirements of the role; and
  3. Explain the support that you have provided to try and enable them to do so.

Exploring whether family members or friends are willing and able to act

A referral to the Safeguarding Finance Team should be the last resort after all other options have been explored and ruled out. This is because formal involvement of the Local Authority is likely to be the most restrictive option of supporting the person to manage their finances.

The steps below will help ensure that all less restrictive options are explored.

Step 1

Before making a referral explore whether there are any family members or friends who may be able to act.

Step 2

If so, discuss this possibility with them and establish if they are able to do so. During any discussion you should provide good information about the role of an appointee or Deputy. This is set out in sections 2 and 3 above and the person can also look at the government website.

If not, consider whether there is a Solicitor involved who may be able to act and if so, approach them.

Step 3

If they need or request it, allow the family member or friend some time to think things over or access independent advice before making a decision.

Step 4

If they decide to proceed, consider any support they may need to make the application. For example, this could be provided by an advocate or voluntary organisation. Do not close the case until you know the outcome of their application and are satisfied that the person's finances are safeguarded.

If they decide not to proceed find out why, and explore whether there are any barriers that can be overcome. For example they may not have understood the role and further information could assist, or they may find the process of applying daunting.

5. Making a Referral to the Safeguarding Finance Team

To make a referral to the Safeguarding Finance Team you must complete both of the following forms in all circumstances:

  1. The Appointeeship and Deputyship Referral Form; and
  2. A COP3 form (section 5 onwards).

The Appointeeship and Deputyship Referral Form is available electronically, but can also be accessed from the Safeguarding Finance Team directly by e-mailing Accfinance@telford.gov.uk.

The latest version of the COP3 form can be downloaded from the GOV.UK website.

All forms and evidence should be e-mailed to the Safeguarding Finance Team using Accfinance@telford.gov.uk.

Completing the Appointeeship and Deputyship Referral Form

Sections 1-4 of the Referral Form must all be completed. If information is missing the Safeguarding Finance Team will not be able to process the referral and it will be returned to you.

If you are unclear about the information required on the form you should seek support from your line manager or from the Safeguarding Finance Team.

Completing the COP3

The COP3 form should be completed from section 5 onwards in all cases, even if the referral is for a corporate appointeeship.

The Safeguarding Finance Team will make the final decision about which service is required (corporate appointeeship or Deputyship) and if a corporate appointeeship referral becomes a Deputyship application having a COP3 already completed will speed up the process.

Where another mental capacity assessment exists the information can be copied into the relevant sections of COP3 if it is still valid.

Additional information

In addition to the Appointeeship and Deputyship Referral Form and the COP3 you should provide copies of any additional relevant evidence, for example:

  1. A needs assessment;
  2. An OPG100 response from the Office of the Public Guardian.

You should only:

  1. Submit evidence prepared by the yourself, or the Local Authority; unless
  2. The relevant organisation or person has given consent for it to be shared (for example the CCG).

6. After Making the Referral

The Safeguarding Finance Team will decide, based on the information provided to them in the referral whether to apply for:

  1. Corporate appointeeship;
  2. Deputyship; or
  3. Neither a corporate appointeeship nor Deputyship.

You should make appropriate arrangements to monitor the outcome of the referral.

If the person is not eligible

If the Safeguarding Finance Team determine that the person is not eligible based on their criteria you must take steps to support the person to access the support they require through other means.

If the referral is accepted

If the Safeguarding Finance Team determines that either a corporate appointeeship or Deputyship application is required they will make all necessary arrangements. However you should not close the case until after the outcome of the application is known.

From the point that they receive an application it can take the DWP around 12 weeks to make a decision about an appointeeship. Deputyship applications can take up to 6 months, depending on the capacity of the Court of Protection.

In the interim period you should:

  1. Take necessary steps to ensure the person's finances are safeguarded;
  2. Respond to any enquiries from the person/their representative about progress; and
  3. Notify the Safeguarding Finance Team of any change in the person's circumstances that may affect the application (for example if they regain capacity or a family member decides to apply to act).

If the corporate appointeeship or Deputyship is granted

At the point that the corporate appointeeship is granted or Court Order made you can proceed to close the case.

Note: If the person will be receiving cash payments from the Safeguarding Finance Team you must ensure that before closing the case the right support is in place on their Care and Support Plan to enable them to manage and use those payments safely. Wherever possible support should be:

  1. Provided from the person's informal networks of support; or
  2. As part of an existing package of support; and
  3. Focus on building the person's skills and ability to manage the monies independently in the future.

If the corporate appointeeship or Deputyship is declined

If the DWP or the Court of Protection declines the application you must take steps to support the person to access the support they require through other means.

7. Reviewing Corporate Appointeeships and Deputyships

When and how to review

Social work practitioners should review the on-going need for corporate appointeeship or Deputyship:

  1. At the same time as any statutory Care and Support Plan review; or
  2. When there is evidence to suggest that alternative arrangements may be more appropriate (e.g. issues raised by the Safeguarding Finance Team).

Some key questions to ask include:

  1. Are the arrangements working from the person's perspective?
  2. Have there been any changes to the person's circumstances that might affect their benefits? (see below)
  3. Have there been any changes in the person's capacity/ability to manage their own money?
  4. Is there another person who would be more appropriate to act?
  5. If the person receives support to manage cash is the current level of support being provided still the least restrictive?
  6. Is the person being supported to make their own decisions and choices about spending their money, wherever this is possible?
  7. If the person receives cash is this being used appropriately?
  8. Are there any new risks to mitigate?
  9. Is any corporate appointeeship/Deputyship still required?

The Safeguarding Finance Team should be consulted as part of the review to establish if there are any concerns or issues from their perspective.

Changes in circumstances

As corporate appointee or Deputy, the Local Authority is required to report any changes in the person's circumstances that could have an impact on their:

  1. Rate of benefit; or
  2. Overall entitlement to a benefit.

Changes in circumstances include:

  1. The accumulation of funds above permitted thresholds;
  2. Changes in illness or disability;
  3. Changes in mental capacity;
  4. Change in address;
  5. Change in marital status;
  6. Change in income.

If the review indicates a change in circumstances you should:

  1. Notify the Safeguarding Finance Team as soon as possible after becoming aware; and
  2. Provide them with any evidence to support this (having regard for confidentiality).

Outcomes of review

The outcome of the review will be that either;

  1. The corporate appointeeship/Deputyship is still required (regardless of any change in support required to manage cash or mitigate risk); or
  2. The corporate appointeeship or Deputyship is no longer required.

When corporate appointeeship must end

Corporate appointeeship must end when:

  1. The person dies; or
  2. A Court of law makes a determination as such; or
  3. The person regains capacity to claim and manage their benefits.

When corporate appointeeship should normally end

Corporate appointeeship should normally end when:

  1. There is another appropriate person (e.g. family member, friend, Solicitor) who is able and willing to act as an appointee; and
  2. The Local Authority is satisfied that they will be able to meet the requirements of the role.

Corporate appointeeship should only ever last as long as it needs to. Relinquishment to a family member, friend or Solicitor is likely to increase the choice, control and independence of the person.

The process of ending corporate appointeeship

If you believe that corporate appointeeship is no longer appropriate you should;

  1. Discuss this with your line manager; and
  2. If in agreement, discuss with the Safeguarding Finance Team.

The Safeguarding Finance Team will determine whether they should relinquish appointeeship and, if so take steps to do so.

The corporate appointeeship role is not relinquished until the DWP has provided confirmation in writing.

Ending Deputyship

Unless a person has dies all Deputyships can only be revoked by the Court of Protection.

If you believe that a Deputyship is no longer appropriate you should:

  1. Discuss this with your line manager; and
  2. If in agreement, discuss with the Safeguarding Finance Team.

The Safeguarding Finance Team will determine whether they should take steps to apply to the Court of Protection.

An application to the Court of Protection to revoke Deputyship should always be made when:

  1. A person regains capacity; or
  2. Someone from the person's informal network has been identified, agrees to assume the role and is appropriate to do so.

8. If the Person Dies

The Safeguarding Finance Team should be notified as soon as possible after a person dies so that they can;

  1. Cease making regular expense payments to the person (or their nominated representative); and
  2. Cease making financial contributions to the Local Authority; and
  3. Notify the DWP/Court of Protection; and
  4. Arrange for any benefit payments made since the time of death to be repaid to the DWP.

The Safeguarding Finance Team should also ensure that any monies held in the person's name are released in line with an executors request or solicitor's instructions.

Telford Adult Social Care Procedures