It is important to plan ahead and consider with the person you look after what their wishes would be in the future should a time arise when they are unable to make their own decisions. Where property and financial concerns are in question, preparing in advance can really help save much stress and worry about making the right decisions in the future.
What is having mental capacity?
Having mental capacity is the ability to make a decision, whether it is an everyday decision such as what to wear, or a more important decision such as where to live.
There are different ways of looking after someone’s affairs
Below are some typical scenarios you might be faced with when caring for someone. Click on each to see what options are available.
They can make their own decisions but want help managing their money
If the person you look after wants help managing their bank account and other financial affairs for a limited amount of time, they could grant a General Power of Attorney to a specific person (for example you as their carer).
If this is granted, you would have the authority to deal with any financial affairs as specified in the GPA. If the person you look after wants to grant a GPA, they may wish to seek legal advice first. See the following organisations for further information: lawcentreni.org or Citizens Advice.
This type of attorney will no longer apply if the person it represents loses mental capacity. If this is a reality you’re facing, it may be more appropriate to look into the possibility of setting up an Enduring Power of Attorney. See this page and the section below for further information.
If the person you are looking after has mental capacity but wants some help with managing their bank or building society account, they could set up a third-party mandate. This gives a specific person, such as you as their carer, authority to manage their bank account. These are arranged directly with the bank or building society of the person you look after – you can request a third-party mandate form.
Please note that the options provided above can only be used if the person has mental capacity, and both arrangements cease if the person loses the capacity to manage their affairs.
If the person you look after is 18 or older and wants help managing their bank account and other financial affairs, both now and in the future (for when they are unable to make a decision), they could grant an Enduring Power of Attorney for property and financial affairs to a specific person (for example you as their carer).
If granted this, you would have the authority to deal with any particular affairs the EPA specifies. These can be limited to just some financial or property matters if preferred. This type of attorney can be used as soon as it is registered and can continue to be used if the person you look after becomes unable to make their own decisions (so if they lack mental capacity). See below for some further information on EPAs.
It’s important to bear in mind that becoming mentally incapable to make your own decisions could happen overnight, just as it could be expected as the result of a gradual condition or illness. The EPA must always act in the person’s best interests.
They can make their own decisions now but want to make arrangements in case they are unable to in the future…
If the person you look after is 18 or older and can currently make their own decisions but wants to make plans in case they are unable to make decisions in the future, they could set up an Enduring Power of Attorney. This means that they appoint a specific person (for example you as their carer) to have the authority to make certain decisions on their behalf.
Unlike in other parts of the UK, it is not possible to set up a health and welfare power of attorney in Northern Ireland.
When setting an EPA up, you can specify which powers you would like it to cover, for example – it could allow the nominated attorney control of bills and financial matters but not property related issues.
It would need to be registered with the Office and Care for Protection at the time when you wish it to apply. For more information about EPAs, including how to make one, how to register one and the fees involved, see NI Direct.
This option should be considered carefully, preferably with legal advice. If the person you look after wants to grant an EPA and wants some help with this, they could contact a local advice centre or a legal adviser for guidance. See the following organisations for further information: lawcentreni.org or Citizens Advice.
They are unable to make their own decisions and there’s no Enduring Power of Attorney in place…
If the person you look after is unable to make their own decisions, and needs help to manage their affairs, pay bills, maintain property, manage income and so on, you could apply to be their court appointed controller (if there is not already an Enduring Power of Attorney in place).
You can apply for a ‘Controllership Order’ through the Office of Care and Protection.
This means that you would become responsible for making and maintaining many decisions, on their behalf. Read more about this option here: www.justice-ni.gov.uk/articles/how-apply-become-controller
The Controller must always act in the person’s best interests.
If there is no EPA or Controllership in place
The person you look after may become unable to claim or manage any benefits they may be entitled to or receive.
In this case, someone could apply to the Department for Communities (DFCs) to do this on their behalf. This is called becoming an ‘appointee’.
An appointee will be the person who is responsible for making and properly maintaining benefit claims, reporting all relevant changes in circumstances, and spending the benefits in the person’s best interests.