Deputy’s powers under general authority
The difference between a deputy and an attorney has been covered in previous blogs; however, to recap: if someone loses capacity before making a lasting power of attorney and their finances need to be managed, a deputy can be appointed by the Court of Protection under a P&F order.
The Court of Protection has defined a limit on what property and financial (P&F) deputies can and cannot do without seeking further authority from the court. A routine order appointing a P&F deputy will give authority to carry out tasks such as paying bills. Orders do not routinely give authorisations to sell a house, but if you have been given authorisation, the general authority will allow you to appoint an estate agent and lawyer to assist with the sale, for example.
It does not allow you to instruct a lawyer in relation to contentious proceedings or to appeal the outcome of a decision made by a public body. However, deputies can seek advice and write a ‘Letter Before Action’ (LBA), detailing the basis on which a claim can be made. Once a response has been received to the LBA, further authority can be sought from the Court of Protection before legal proceedings are issues.
P&F deputies will need to apply for authorisation from the Court of Protection to include but not limited to, the following:
- Evictions for unpaid rent
- Inheritance Tax Planning
- Making large or unusual gifts
- Starting divorce proceedings
- Challenging decisions made about NHS Continuing Healthcare Funding (NHS CHC)
- Appealing decisions made by local education authorities regarding Education, Health and Care plans (EHC)
- Appealing decisions made by local authorities about the care provided under the Care Act 2014
If the deputy has not given permission, they risk being personally liable for costs incurred by either or even both sides.
An application to the Court of Protection will not necessarily be granted, and the court will consider many aspects, including the merit of the action, the costs, and the size of the person’s estate. However, the deputy is allowed to incur the cost of seeking legal advice in relation to a ‘Letter Before Action’.
Applying to the Court of Protection can be complicated and we have experience in a variety of applications and are able to give advice on all of the issues listed. For an initial discussion please call the team on 01473 611211.