Acting for someone else
Sometimes it is difficult for people to do some things, or make certain decisions, on their own or for themselves. They could be worried that this may be the case in the future. This might be because they have a mental health problem like dementia, or simply because they can’t get out and do those things easily any more. They may need someone they trust to help them or do some of those things for them.
Looking after and managing someone else’s affairs can mean a number of things. It could be making day-to-day choices about things like their personal care, how to claim and use their benefits, or looking after their bank accounts or savings. Or it could be making much bigger decisions about where they live, or buying or selling a property.
There are different ways of helping to manage someone else’s affairs, each for a different reason and with a different legal status.
Advocates - someone to speak on your behalf
An advocate can help you tell other people what your needs or wishes are if you don’t feel able to do this for yourself. They will support you with what you want to say whenever possible, but they can speak for you if you want them to.
An advocate could be someone you trust, like a family member, a neighbour or carer. But if you haven’t got anyone to speak up for you, there are organisations that can help you. They can also explain some of the complex processes and possibilities for you.
If you ask for a social care assessment and the person you talk with feels you would benefit from having an advocate, with your consent they can help you arrange that.
In Somerset, there is an independent advocacy service provided by SWAN Advocacy. They also provide specialist advocacy to represent people without capacity and Somerset residents who decide to pursue a complaint about the NHS.
Phone: 03333 44 7928
Email: somerset@swanadvocacy.org.uk
You can find more information to help you on the Somerset Council website:
Make an adult social care complaint
Help from social care
The Care Act
The Learning Disabilities Service
C5: Help with paying for care and support
Appointeeship
An appointee can act on behalf of someone who is entitled to benefits (known as ‘the claimant’) from the Department for Work and Pensions (DWP) but who can’t manage their own affairs. This could be because they don’t have capacity or are severely disabled.
You can only have one appointee.
An appointee can be:
- an individual, for example, a friend or relative
- an organisation or representative of an organisation, for example, a solicitor or the local council
An appointee is responsible for making and maintaining any benefit claims.
They must:
- sign the benefit claim form
- tell the benefit office about any changes which affect how much the claimant gets
- spend the benefit (which is paid directly to the appointee) in the claimant’s best interests
- tell the benefit office if the claimant can now manage their own affairs and no longer needs an appointee, or if they wish to appoint someone else
Corporate appointeeship is when an accredited organisation becomes the designated appointee. This is usually when there is no one else, such as a family member or friend, who is willing or able to take on the role. A corporate appointee could be a solicitor, a consumer advocate organisation or a local authority.
Corporate appointees need to be approved by the Department for Work and Pensions
Deputyship
The Court of Protection is a specialist court which deals with all issues relating to people who lack capacity to make specific decisions. One of their roles is to appoint deputies to make decisions in the best interests of someone who lacks the capacity to make those decisions for themselves.
Deputies are usually close relatives or friends of the person who needs help making decisions. You must be 18 or over to apply to be a deputy.
As a deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.
There are two types of deputies.
Property and financial affairs – paying bills, organising a pension. If you want to become a property and financial affairs deputy, you need to have the skills to make financial decisions for someone else.
Personal welfare – making decisions about medical treatment and how someone is looked after. You need to get the Court of Protection’s permission to apply if you want to become someone’s personal welfare deputy.
Download and fill in the permission form (COP2) and send it to the Court of Protection.
You can apply to be just one type of deputy or both. If you’re appointed, you’ll get a court order saying what you can and can’t do.
Lasting power of attorney
Sometimes people want to plan ahead and organise things in advance about what they would like to happen if they become unable to make decisions for themselves in the future.
To do this you – the donor – need to fill in a legal document called a Lasting Power of Attorney (LPA) naming the person you choose to make decisions on your behalf.
An attorney is appointed to make decisions as if they were the donor themselves. An attorney must act in the donor’s best interests.
A donor must have the mental capacity to grant a Lasting Powers of Attorney. This means they must understand what they are doing and what they are signing.
There are two types of Lasting Power of Attorney and you can choose to make one type, or both:
A property and financial affairs LPA is for decisions about finances, such as
- managing a bank or building society account
- paying bills
- collecting benefits or a pension
- selling your home
A health and welfare LPA is for decisions about both health and personal welfare, such as
- your daily routine, for example, washing, dressing, eating
- medical care
- moving into a care home
- life-sustaining treatment
If someone has not planned ahead and not appointed an LPA and then becomes unable to make decisions, the situation must be referred to the Court of Protection.
Find out more about lasting power of attorney on the GOV.UK website
The Council managing your affairs
The Mental Capacity Act requires the Council to assume that people have capacity and can make decisions themselves, unless otherwise established.
If the Council thinks a person may lack capacity to make a decision, even after being offered practical support, a social worker or other suitably qualified person will carry out a capacity assessment about the specific decision to be made.
They will still charge people who have eligible care needs but lack capacity. They will make sure people are fully represented and decisions are in their best interest.
The Council will find out if there is an appropriate person to represent them.
This could be
- Enduring Power of Attorney (EPA)
- Lasting Power of Attorney (LPA) for property and affairs
- Lasting Power of Attorney (LPA) for health and welfare
- Property and affairs deputyship under the Court of Protection
- Health and welfare deputyship under the Court of Protection
- Any other person dealing with the person’s affairs (for example, someone who has been given an appointee-ship by the DWP for the purpose of benefit payments)
If none of these are in place, family members or their solicitor will be encouraged to apply for a Property and Affairs Deputyship through the Court of Protection.
If there is absolutely no one else who can act for the person, the Council will make an application to the Court of Protections and assume the role as their deputy. The Council will apply to be the person’s Corporate Appointee in respect of their welfare benefits with the Department of Work and Pensions. They will charge an administration fee for this service
For more information please see the information sheet C8 Money and people who lack capacity and the Data Protection Act page on the Somerset Council website