By Jaclyn Glover, Deputy Manager, Citizens Advice Newtownabbey
Q: I have helped my aunt look after her financial affairs for the past 10 years and she has recently been diagnosed with dementia. We do not have any legal documents to officially let me look after her affairs, but she has been told she cannot do this herself. What are my options?
A: You may need to make decisions for someone who has lost their mental capacity when there is no enduring power of attorney. However once the person has lost their mental capacity, it is no longer possible to make a power of attorney.
If someone can make a decision for themselves, they can be said to have the mental capacity to make that decision. If they aren’t able to make a decision because of some form of mental disability, they can be said to lack the mental capacity to make that decision. The disability may be either temporary or permanent and could be caused by:
• brain injury
• a stroke
• alcohol or drug misuse
• the side-effects of medical treatment
• any other illness or disability.
It is possible to apply to the Office of Care and Protection for a decision to be made on a particular matter. However, if there is a continuing need to make decisions on the person’s behalf, you can ask the Office of Care and Protection to appoint you as a controller.
A controller is usually a family member or someone who knows the person well. A controller can make decisions about someone’s personal, property and financial affairs. If there’s no friend or family member who is suitable or willing to act as a controller, the Office of Care and Protection can appoint the Official Solicitor.
If the Office of Care and Protection appoints you as a controller, you will take control of the person’s financial affairs and property and act on their behalf. You will be required to open a bank account in your own name as controller and you will need the permission of the Office of Care and Protection before making any decisions about capital, such as the incapacitated person’s home or other property. You will usually be required to present yearly accounts of the person’s finances.
In certain cases, where the incapacitated person’s assets are valued at less than £16,000, you can usually apply to the Office of Care and Protection for directions that, if granted, mean that the Office of Care and Protection does not need to appoint a controller. This is a less formal arrangement, but every situation still needs to be fully assessed individually by the Office of Care and Protection in order to decide whether directions would be appropriate. Contact the Office of Care and Protection, for further details and the appropriate forms.
• What can you do if you think someone isn’t acting in the best interests of someone who has lost mental capacity?
You may be concerned that an attorney or a deputy is not acting in the best interests of someone who has lost their mental capacity. You should report your concerns to the Office of the Care and Protection.
If there’s an enduring power of attorney which hasn’t yet been registered, you may be able to object to the registration. The Office of Care and Protection can direct an official of the court to visit an attorney or controller to investigate your concerns. In serious cases, the Office of Care and Protection can cancel an enduring power of attorney.
The contact details of the Office of Care and Protection are - Tel: 028 9072 4732 or 028 9072 4733; Website: www.courtsni.gov.uk
• Get free, confidential and independent advice from your nearest Citizens Advice – go to www.citizensadvice.org.uk/nireland or call at: Citizens Advice Newtownabbey, Dunanney Centre, Rathmullan Drive, Rathcoole, Newtownabbey, BT37 9DQ. Telephone advice is available 9am – 4pm each day on 028 9085 2271 (Lunch 1pm - 1:30pm), email advice is available at email@example.com