Guidance

OPG InTouch: Spring 2018 (web version)

Updated 17 May 2018

Applies to England and Wales

Securing the person in your care’s financial assets

As a property and affairs deputy, you’re responsible for securing the financial assets of the person you’re acting for.

The law says that you should manage the person’s finances with more care than your own. This may seem daunting, but it’s achievable with careful organisation and a good understanding of your duties.

When you first become a deputy, you’ll discuss the best way to protect the person in your care’s financial assets in a settling in call with your case manager. We can’t offer financial or legal advice but we can help you make good decisions for the person.

The first things they’ll ask you to do will include:

• list the person’s income and assets – review all their bills, paying any outstanding amounts and cancel any payments that are no longer needed.
  
  
• make an inventory of their belongings – list anything of value that’s in the person’s house. Some people might have valuable collections and we’ve experienced things like war medals, stamp collections and even fur coats which must be looked after and protected from damage. Get them insured and kept safely until your deputyship ends.
  
  Our new deputy report, which we talk about in this newsletter, will help all new deputies and everyone who compiles their annual report online in future automatically record this information.
  
  
• tell all concerned parties that you’re the deputy - this includes institutions like banks and building societies, investment companies, or the Department for Work and Pensions (DWP). If the person holds shares in individual companies, write to the company registrar.
  
  You’ll need to show all these people an original, sealed copy of your court order, and proof of your and the person’s name and address.
  
  
• redirect pensions and benefits – they might be paid by the DWP to a third party under an appointee arrangement. A deputyship order supersedes an appointeeship, but you must tell DWP for this to take effect. Arrange for their benefits or pension to be paid into a deputyship account.
  
  The same is true if their local authority is making direct payments for their care to a third party. Ask the council to redirect payments to the deputyship account.

As your deputyship progresses you should continue to manage their finances in a responsible way that maximises financial return for them without exposure to excessive risk.

Here are some tips to help you do this:

1. Keep your own money and the person’s separate
   
   For day-to-day banking, add your name to their account, for example: ‘Mr John Smith as deputy for Mrs Jane Jones.’ If they have a joint account (for example, with their spouse) you’ll probably find it much easier to manage and report to OPG if you create a new deputyship account just for their income and outgoings.
   
   

2. Avoid using cash
   
   Avoid holding significant sums of their money as petty cash to pay for personal items or day-to-day sundries. If you want to buy them anything, use direct debits and debit card purchases wherever possible. This is partly for security and partly because it is more transparent and will make reporting to OPG easier. It will also help you keep track of all your spending for your annual report.
   
   

3. Check what benefits are available
   
   Make sure they’re accessing all the bene ts they are entitled to. Your case manager will be able to support you in finding out what could be available to them.
   
   

4. Protect their money from financial institution failures
   
   If a financial institution collapses, the Financial Services Compensation Scheme (FSCS) will compensate customers for any funds lost up to a set limit of £85,000 per depositor (£170,000 for joint account holders).
   
   This limit applies to a customer’s total assets held by the collapsed institution and not to individual accounts. So, if the person has two accounts with an institution, each with £50,000 in them, they’d only receive £85,000 if it collapsed – which is a loss of £15,000.
   
   A single ‘institution’ may include several different bank and building society brand names. If the person you are looking after has more than £85,000 with a single financial institution, consider redistributing the funds.
   
   

5. Protect their property
   
   Make sure the person’s property and its contents are insured. If it’s empty, tell the insurance company so the policy doesn’t become invalid.
   
   Make any necessary repairs to keep the property weather tight and secure. If it’s empty, consider leaving the heating on low over the winter to avoid burst pipes. If the property is going to be empty for a long time, turn off the water at the stop cock and drain the radiators.
   
   Ensure the windows and doors are secure to reduce the risk of burglary and consider having a lamp on a timer to make the place look occupied. Check the property regularly, keep the garden tidy and collect any mail.
   
   A deputy only needs to apply for permission to sell the person’s house if their existing order explicitly prohibits a sale. Otherwise, the authority to sell is inherent in the order’s general management powers.
   
   

6. Take care of any vehicles
   
   Tell the DVLA about any vehicles so that they record you as its registered keeper. You’ll be able to tax it, arrange the MOT and insure it. However, if the client is no longer able to benefit from the vehicle it may be better to consider selling it.
   
   

7. Keep your security bond at the right level
   
   If the person receives a large sum of money, for example, from an inheritance or a compensation claim, check your security bond to see if the existing level of security (as specified in your order) is still adequate protection. If it needs to be increased, you should apply to the Court of Protection to do this - neither OPG nor the bond company have the authority to change it.
   
   

8. Get professional help if you need it
   
   You might want to employ an accountant or a solicitor, if the person has complicated financial affairs. It would be reasonable to hire an accountant to draft their tax return for example. A financial adviser would also be a sensible option, to make sure that you’re handling the person’s finances in accordance with your duties as a deputy.
   
   
   

What if a bank doesn’t recognise my court order?

If a bank or financial institution doesn’t recognise your deputy court order, get in touch with your case worker. While we won’t be able to intervene directly, we’ll bring the issue to the bank’s attention.

You can find an example of a valid court order which can be used to show the banks it’s real. We also have some more general guidance on dealing with banks

Understanding expenses when you’re a lay deputy

When you’re a lay deputy, knowing what you can and can’t be reimbursed for can be confusing. When you’re appointed as a deputy one of the first things that happens is that you’re issued with your court order by the Court of Protection. Paragraph 4 of the court order explains that you’re able to claim expenses as part of your role.

Paragraph 4 usually reads:

The deputy is entitled to be reimbursed for reasonable expenses incurred, provided they are in proportion to the size of (insert name of client)’s estate and the function performed by the deputy.

Lots of deputies have told us there’s still some confusion about what you can and can’t claim for. The most important thing for you to remember is that expenses are not payment for the time that you spend acting as a deputy.

Generally, the only deputies that are paid for their time are professional deputies, such as solicitors appointed to the role. If you want to receive payment for time you’ve spent carrying out your role, you need to ask the Court of Protection for permission first.

You can claim expenses for:

• costs incurred travelling to visit the client in your role as deputy
• postage costs
• phone calls
• any bills you have paid on behalf of the client (for example, utility bills, care fees, solicitor’s fees or court fees)

You can’t claim expenses for:

• travel costs for family and social visits
• loss of earnings
• time spent on keeping records or other administrative tasks

If you do claim expenses as part of your role as a deputy, make sure you keep a record of them, as you’ll have to tell OPG about them in your deputy report. Also, please remember that if your expenses are considered unreasonable you may have to repay them. In extreme cases the issue may be escalated and you may have your role as a deputy removed by the Court of Protection.

Of course, even though there is a clause in your court order explaining that you may claim for expenses, you don’t have to if you don’t want to.

How to find out more

If you’re still uncertain about claiming expenses please get in touch with our lay deputy support team.

You can:

• call them directly on 0115 934 2700
• email laydeputysupport@publicguardian.gsi.gov.uk

You can also read our deputy guidance

The latest on our online reporting service for deputies

We introduced our online lay deputy reporting service in June 2016. Since then, we’ve been using your feedback to make improvements and make it even simpler for lay deputies to submit their annual reports online. By the end of 2017, over 5,300 lay deputies had registered and completed reports online.

Since September 2017 we’ve made a number of changes which will make life easier when submitting your reports. This includes:

• the option to complete your health and welfare reports online at the same time as your property and finance, if applicable

• more than one deputy can be registered to a client online. Any of the co-deputies registered will be able to complete and submit reports for that client, rather than relying on one registered deputy to handle the whole process

• you can now attach documents such as bank statements to your reports to support your financial decisions. This allows you to send documents quickly if and when a case manager requests them. It also saves money on postage

• a new accounts balance page showing your running total income and outgoings, which will help you track spending better

Following feedback from our deputies, in the coming months we intend to improve the way the ‘money in’ and ‘money out’ sections work. We’ll also introduce a facility to amend and resubmit previous years’ annual reports.

If you’d like to complete your report online, go to www.gov.uk/become-deputy/complete-your-annual-report

To create an account you’ll need your case number (the OPG reference number on letters you receive) and your email address.

Public authority deputies

The online reporting service for public authorities went live in June 2017, and 17 authorities have submitted reports, with positive feedback on the service. If you’re interested in using the service to manage your clients’ reports, please contact the public authority deputy team by:

• telephone: 0115 934 2817
• email: opg.publicauthorityteam@publicguardian.gsi.gov.uk

Professional deputies

The online reporting service isn’t currently available for professional deputies. But, research into this group has started and we aim to make the service available for use by summer 2018.

Online reporting makes a lengthy and often daunting paper-based process easier and more manageable. With the option to fill in reports as much and as often as you would like throughout the year, and come back to it when you have more information to add, it makes tracking your accounts much simpler.

If you haven’t already, we really encourage lay and public authority deputies to sign up to the online service. It’ll make submitting your annual report much quicker and more straightforward.

Applying the five principles of the Mental Capacity Act when making decisions

As a deputy, you’re responsible for making decisions on behalf of someone who may not have the capacity to do so. Depending on whether you’re a lay, professional or public authority deputy, when you first receive your court order, you might know the person very well, or might not know them at all. This will affect the way you make decisions for them.

At OPG, we always say the first thing you should do when you receive your court order is to get to know the person, if you don’t already. This is so that when you do need to make a decision, you’ll know if you can help them make it themselves. If they can’t make the decision it will help you choose the right thing, that’s in their best interests.

Even when you do know the person well, you should always be guided by the Mental Capacity Act 2005 (MCA). Section 1 of the Mental Capacity Act sets out five basic and fundamental principles which all those working with people over the age of 16 should adhere to:

1. A person must be assumed to have capacity unless it is established that he lacks capacity (subsection 2)

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (subsection 3)

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision (subsection 4)

4. An act done, or a decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests (subsection 5)

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (subsection 6)

The five principles in action

Poppy has a learning disability and lives in supported living accommodation. Her brother has been appointed by the court as her personal welfare deputy. She has an underactive thyroid and requires regular blood tests which she generally complies with.

At a recent visit to the practice nurse, Poppy refused to roll up her sleeve for the test and firmly folded her arms. The support worker tried to gently encourage her, but she communicated very clearly that she was refusing the test.

So what does the Act say?

Section 1 of the Act establishes the principle that people over the age of 16 are assumed to be mentally capable of making their own decisions. This basic right can only be overridden if Poppy is assessed as lacking capacity.

Therefore, deputies, health professionals, social workers and support staff should always approach decision making with the mindset that an individual is assumed to be mentally capable of making their own decisions S1(2).

How can this situation be resolved?

The blood test needs to be postponed to establish if Poppy fully understands why she needs to have it. This fulfils the second principle S1(3). By taking more time to explain why the tests are necessary, the deputy and the support team are taking ‘practicable steps’ to ensure that she is as fully involved in the decision making as possible.

Staff and the deputy could do this by speech or using pictures to ensure that she has enough information, or the ‘salient points’, to make the decision for herself.

We need to find out why she is refusing the test and empower her to make this decision. It could be that Poppy is making an ‘unwise’ decision’ as outlined above S1(4). If we put ourselves in Poppy’s shoes we sometimes put off unpleasant things for no other reason than the fact that we just can’t face it at that time. If Poppy has the capacity to make this unwise decision, she is legally allowed to do so.

If Poppy does not have the capacity to make this decision, the deputy, along with clinicians and the support team, will need to arrive at a ‘best interests’ decision S1(5). They need to weight up the pros and cons of Poppy having the test, not having the test and the potential impact on her of having the test against her will. We draw on ‘less restrictive’ principles.

The Mental Capacity Act (2005) Code of Practice gives many more tips and support in chapter 4 and offers additional guidance that deputies may find useful.

Remember, when you make a decision for someone who’s lost their capacity it’s not a ‘one size fits all’ approach. There are many reasons people lose their capacity, and the approach that’s taken to support them needs to remain as unique as they are.

If you need help making a decision read:

• our deputy guidance

• the Mental Capacity Act (2005) code of practice

Deputy bonds: Howden

Don’t forget you can contact our approved supplier for deputy bonds (Howden UK Group Limited) by:

• visiting the Howden UK Group Limited website
• calling their deputy bond support team on 0121 516 7690

You can get a quote for your bond, or renew a bond issued by previous suppliers, and have it issued immediately. As OPG’s approved supplier we monitor Howden’s service levels closely.

You don’t have any obligation to transfer your bonds from other suppliers at renewal unless you want to.

Updated practice note on giving gifts now available

We’ve updated our practice note for deputies and attorneys on how they should approach giving gifts on behalf of the person they act for.

Our updated gifting practice note explains the legal framework for giving gifts and we’ve updated it to reflect recent judgements on gifting from the Court of Protection.

As a deputy, you’re able give gifts on behalf of the person that you are acting for. You do however need to be very careful. If you give a gift beyond your authority or that isn’t of ‘reasonable value’, then we may:

• ask you to pay it back
• ask you to apply for retrospective approval
• launch an investigation

We’ve made this guidance available in Welsh, and can supply paper copies in either English or Welsh upon request.

Read the updated practice note

General guidance on how you should approach giving gifts as a deputy is available and you can find out more about giving gifts by speaking to your case manager.

Always striving to improve how we protect our customers

OPG supports the rights of people who may not have the mental capacity to make certain decisions for themselves. One of the most important ways we support people is by ‘safeguarding’ or protecting them from abuse or neglect. We share this priority with many public services and local authorities.

In October 2017 we marked our 10th anniversary. Since our inception, the number of people we protect has increased every year. Between April 2013 and April 2017 alone, the number of deputies we supervised grew by nearly a quarter from 46,804 to 57,702.

As we’ve grown, we’ve always strived to ensure we do everything we can to safeguard the people who need us. Safeguarding is a very important part of what we do –– and we’ve been doing a lot of work recently to further improve the way we do things.

Making our processes clearer for customers

Last year we carried out a survey to help us understand whether people who had contacted us to raise a concern understood our safeguarding and investigation process.

Some of the findings from the survey showed that our customers:

• found that it wasn’t always clear what we can and can’t do within our powers to protect adults at risk
• weren’t always sure of which organisation to go to for help
• were sometimes passed from one organisation to another when trying to pursue a safeguarding concern

We’re using these results to write a new safeguarding strategy. This will help us to prevent issues arising, and it also sets out how we’ll investigate concerns and how we’ll resolve them.

The new strategy will replace our existing safeguarding policy, which currently focuses on the investigation element. The strategy will also provide both you and our partners such as the police, social services and other government agencies with information on what’s within our powers to protect our customers.

There may be times when you report a concern to us and we have to ask you to contact someone else to make sure it’s dealt with appropriately. This can include suggesting you contact social services, the police, trading standards, the Care Quality Commission in England or the Care Standards Inspectorate for Wales or health care professionals.

The strategy will help us work more closely with these organisations to help prevent, investigate and resolve safeguarding concerns. It will also ensure that we guide you to the right place to help you pursue them.

The new strategy will be available to you on GOV.UK in the spring.

This year, we’re also continuing our safeguarding study, which looks at the way we handle safeguarding referrals at OPG. Through the study we’re looking to improve processes and training and awareness for our staff.

In addition, we want the results of the study to help us work even more closely with our external partners, such as social services, the police, financial institutions, and health and care providers. This means making sure they know who we are and what we do, so we can work together quickly and efficiently when protecting people who lack mental capacity.

How we work with partner organisations

One of the ways we work with other public sector organisations who protect people at risk, is to hold regular networking events. Two of our networking events are our safeguarding roundtables, held in England and Wales, chaired by Alan Eccles, OPG’s chief executive and Public Guardian.

At our most recent roundtables, in autumn 2017, representatives from organisations including the Care Quality Commission, the Association of Directors of Adult Social Services, the police, NHS England, and the Welsh Government, joined us.

We focused on new research into financial abuse of people lacking mental capacity and improvements that are being made to our service to combat this. At the London event our guest speaker, Dr Gillian Dalley, of Brunel University, London shared the results of her research into financial abuse of people who lack mental capacity to manage their own affairs.

In Cardiff, Baroness Ilora Finlay, chair of the National Mental Capacity Forum, gave a presentation on person-centred decision making and shared examples of good practice.

We also shared some of our own research at both events. At OPG we’ve carried out studies into how well public and third sector workers understand the role of OPG, and what LPAs and court orders are for. We found that understanding amongst respondents about OPG and court-appointed deputies was relatively low.

This is another area where we’ll be working closely with other organisations throughout 2018 to improve awareness and understanding of what OPG does and the role of a deputy.

To find out more about the events, follow our Twitter account or read our blog

A day in the life of customer relationship management

Mandy is a customer relationship manager at OPG, and she researches our customers’ satisfaction with our services. ‘Customers’ can mean our deputies or clients, attorneys or donors.

Her team also talks to organisations our customers deal with every day including financial institutions, the health sector and local authorities.

Mandy moved into the world of research after being asked to work on improvements to our online lasting power of attorney (LPA) tool. Mandy says:

My team was asked if we had any resource to help them out, and that was me. I found out I enjoyed it and I’m quite good at it - I love it. It was a lucky chance I think.

At OPG we’re office based and we don’t meet many of our customers. For Mandy, customer relationship management offers the chance to see the people we help every day face-to-face.

No two research projects are the same. They might be regular customer satisfaction surveys or a special research project to provide information and feedback from our customers so that any changes we make to our services consider the impact on our customers.

Currently, we ask a random selection of deputies their opinions monthly for our customer satisfaction survey, but we’re reviewing this to see how we can make it as effective as possible.

An example of one of our special surveys is our ‘post registration’ survey. This covers what it’s like to present your deputyship order or LPA to banks or other organisations such as the health sector or utility companies. Mandy says:

Our partnerships team use this a lot as it gives us a good feel for how the organisations that we’re working with are helping our customers.

We’ve also just carried out an ‘organisational awareness survey.’ We’ve gone to the organisations rather than the customer to ask them what it feels like for them, to see if they’re aware of OPG. We’ve found that we’ve still got quite a lot of work to do to improve the awareness of the LPA and deputyship orders.

We’ve found that awareness of deputyship court orders is really low amongst organisations compared to the LPA, so this is something that our partnerships team will be working on.

To make sure we’ve found out in as much detail as possible what our customers think, Mandy carries out two types of research:

• ‘quantitative’ – where you ask lots of people limited response questions. This can be online or by post.
• ‘qualitative’ – where you ask a smaller number of people more detailed questions. This can involve visiting people at home. We tend to only do between 40 and 50 face-to-face interviews for qualitative research.

Mandy says:

If I had the choice I would do face-to-face research rather than online research. I just think you get so much more out of it.

We interview not just deputies and attorneys but both client and donor when they have enough capacity. Which is really lovely, as OPG doesn’t interact with the donor and client much so it’s nice to get the opportunity to see how they feel about our services.

I’ve met some lovely people, I’ve heard some really sad stories but I’ve also heard some really inspirational stories. People go through a lot, but they’re still really jolly.

How we conduct our research

We select respondents at random from our databases. We try to get a good balance of age, gender and geographical spread.

If we want to talk to people face-to-face we’ll call them and set up a date and time that’s convenient for them. It doesn’t have to be at home, but most people choose to do it there. Mandy adds:

I have interviewed someone in a library as they didn’t feel comfortable having a stranger in their own home.

If we’re interviewing a donor or client, Mandy says:

We sometimes have to arrange support for them. By the nature of being in a deputyship means they’ve lost capacity to make financial decisions but that doesn’t mean to say they don’t have capacity to give informed consent to take part in research.

We might ask a carer, a care home manager or the deputy themselves if they think the client or donor has sufficient capacity to be interviewed.

Mandy would like more people to answer surveys.

People often only do a survey when they’re dissatisfied. We want good and bad feedback, because good feedback is a finding in itself – it shows best practice. If we find that people are saying that a part of our service is really good then we’ll consider how to replicate that.

Everybody’s view is important. A lot of people think ‘Well I don’t think I’ve got anything to offer,’ but they do.

If you’d like to take part in any of the special research projects or user testing we run from time to time we keep a list of willing volunteers and you can sign up

We’d love to hear from you – we’ll only contact you when we run one of our special research projects.

We use the results of our research to:

1. understand what it’s like to be a deputy
2. learn more about you
3. identify issues we haven’t come across before
   
   

One of the ways we’ve improved our service using your feedback is putting more people on our phones at busy times, after you told us it took too long to get through.

We’ve shared your feedback with financial institutions, to make them more aware of the difficulties you face using your court orders and help their front line staff understand them better.

How we handle complaints: a view from supervision

At OPG, we’re committed to providing a high-quality service to all our customers, but we recognise that we don’t always get it right. We define a complaint as:

An expression of dissatisfaction that requires action or a response.

Complaints in supervision

Our supervision team records all complaints we receive over the phone, by email and in writing. Our aim is to provide a response to you within 10 working days.

If we can’t do this we’ll keep you updated on the progress of your complaint and tell you when you can expect a response.

Common causes of complaints

On average, we receive around 56 complaints a month about how we supervise deputies.

When customers complain about the supervision team, it’s often about the service they’ve received. For example, they might not be happy with a letter we’ve written to them.

If we receive a complaint about the way we communicate, we make a record of it. We use it to develop our training for case managers, to make sure we’re communicating with you in the best way possible.

Sometimes, it’s better to speak to you rather than write so we’re reducing the number of letters we send out and encouraging people to contact us by telephone instead.

We also have a quality control process to help us understand any trends in complaints and any training requirements.

Fees are another topic of complaint which we address. Many people feel that it’s unfair that they are required to complete a report, and pay for it too.

We charge an annual supervision fee of £320. Parliament sets this fee, and successive governments have taken the view that our costs should be met by those who use our services and not by taxpayers generally.

The fee is necessary for us to carry out our work in supervising court-appointed deputies. It also covers shared services such as our contact centre and our important compliance and investigation functions.

Sometimes a concerned relative or friend of a person with a deputy will get in touch with us to tell us something they are worried about. It might be a brother or sister who is unhappy with the person who is appointed as a deputy for example.

In these circumstances we try to offer assurance and explain that we’ve investigated the concerns raised with the deputy’s conduct, or if we haven’t, the reasons why.

If someone contacts us because they’re worried that someone with a deputy is at risk of abuse, we treat this as a safeguarding referral and consider it appropriately. We take safeguarding very seriously and look into all concerns you raise.

If the issue is about something that isn’t related to what’s specified in the court order, we’ll signpost you to another organisation that can help.

Where we’ve made a mistake we will apologise and explain what has happened and what action we’ve taken to put it right.

How to make a complaint

Telephone: 0300 456 0300
Email: customerservices@publicguardian.gsi.gov.uk

Write to us:

Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

What to do if you’re not happy with a response

If you’re not happy with our response, you can write to our chief executive, Alan Eccles. The chief executive will look at how your complaint was handled and the outcome, and will aim to reply to you within 10 working days.

If you’re not satisfied with the chief executive’s response, you can contact your MP to refer the complaint to the Parliamentary and Health Service Ombudsman.

Read about our full complaints procedure

Useful contacts

Office of the Public Guardian (OPG)

OPG is responsible for registering lasting and enduring powers of attorney, so that people can choose who they want to make decisions on their behalf if they can not. We maintain the public register of deputies and people who have been given lasting and enduring powers of attorney.

We also supervise and support deputies appointed by the Court of Protection and look into reports of abuse carried out by registered attorneys or deputies.

Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

Website: www.gov.uk/opg

OPG contact centre

Telephone: 0300 456 0300

Opening hours

Monday to Friday: 9am to 5pm
Wednesday: 10am to 5pm

Calls are charged at no more than the national call rate.

Email: customerservices@publicguardian.gsi.gov.uk

If you have speech or hearing difficulties and you have access to a textphone you can call: 0115 934 2778

Fax: 0870 739 5780

Download deputyship forms or guidance

OPG visits team

Email: opgvisitorsoffice@publicguardian.gsi.gov.uk

Court of Protection

The Court of Protection (COP) is a specialist court for all issues relating to people who lack capacity to make specific decisions. The court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.

Court of Protection
PO Box 70185
First Avenue House
42 – 49 High Holborn
London
WC1A 9JA

Telephone: 0300 456 4600

To download COP forms, visit HMCTS Form Finder

See information on COP decisions