Controllerships – All You Need To Know

controllership3

This week is Dementia Action Week 2019 – a week aimed at highlighting the ways in which we can all take action to improve the lives of people living with dementia.  

For those who have loved ones who are suffering from dementia, it is important to consider how becoming mentally incapacitated with such an illness could affect their ability to manage their financial affairs.

In a previous article on Enduring Powers of Attorney, we set out information on how any one of us can take sensible steps whilst mentally and physically capable of doing so, to put in place measures that would reassure us that our financial affairs would be managed by a trusted family member in the event that we lost mental capacity.

However, what if a person has already become mentally incapable and an Enduring Power of Attorney has not been executed?  What action could be taken on behalf of this person to manage their property and financial affairs? 

When a person is deemed no longer able to manage their own finances and they have put nothing in place to stipulate who can manage their finances on their behalf, the responsibility for the management of their property and affairs is vested in the High Court through what is known as a ‘Controllership’.

Here’s all the information you need:-

What is Controllership?

A Controller is a person appointed by the High Court of Justice in Northern Ireland under the Mental Health (NI) Order 1986 to manage the property and financial of an adult who is mentally incapable of doing so themselves.

Who acts as Controller?

Typically a Controller will be a family member or friend of the Patient but may be Court Officer if circumstances require.

When is a Controller appointed?

If a Court is satisfied on the basis of medical evidence that a Patient is mentally incapable of managing personal property and financial affairs and the Patient has assets or income requiring management, a Controller should be appointed.

Is Controllership a temporary arrangement?

Once appointed, a Controller will remain in charge of a Patient’s affairs unless the Court is satisfied:-

  • The Patient has recovered.
  • That such an Order is no longer necessary.
  • The Controller is replaced by retirement or otherwise.
  • The Patient dies.

What responsibility does a Controller have and is it a paid role?

A Controller does not receive payment for work undertaken but may recover reasonably incurred expenses to a limited degree. The Controller’s powers are limited to those set out in the Court Order by which the Controller is appointed and will only ever extend to financial and property matters pertaining to the Patient. The Controller has no authority to manage health, social and welfare matters for the Patient.

What if the Patient disagrees and wants to manage their own affairs?

Once a Controller is appointed the Patient is no longer deemed legally capable of undertaking the management of their financial and property affairs. Before a Controller is appointed,  a Notice is served on the Patient advising that the procedure is underway and allowing the Patient the opportunity to object.

Who is the Controller responsible to?

The Controller is normally required to submit an annual vouched account reflecting all expenditure in relation to the Patient’s funds, to the Office of Care & Protection. The Controller cannot take any significant steps in respect of the Patient’s affairs unless authorised by the Court Order under which the Controller appointment is made, or a subsequent authority is obtained from the Master of the Office of Care & Protection.

A Controller may not incur an expense on behalf of the Patient at a cost of £500 or more without Court authority, and should retain receipts for all transactions involving the Patient’s money which exceed a value of £50.00.

How can application be made to be appointed as Controller?

Such an application can be made directly to the Office of Care & Protection or with the assistance of a solicitor experienced in Office of Care & Protection work to guide the applicant through the process.

If you would like any further information on the areas of Controllership, Enduring Power of Attorney or any other area of future planning, please feel free to contact us here or use our confidential contact form below.

Controllerships: All You Need To Know

controllership.jpgIn the wake of the new Mental Capacity Bill currently working its way into NI law, and also given that it is Dementia Awareness Week 2016, it is an important time in Northern Ireland for people to consider just about how much becoming mentally incapacitated with an illness such as dementia or Alzheimer’s Disease could affect their ability to manage their financial affairs.
The possibility of losing your mental capacity is certainly not a nice area to dwell on.  Whilst in reality many of us will be able to look after our affairs as independently as ever throughout our lives, others suffering from illnesses such as dementia may not be able to do so.

In a previous blog article on Enduring Powers of Attorney, we set out information on how you could take sensible steps whilst mentally and physically capable of doing so, to put in place measures that would reassure you that your financial affairs would be managed by a trusted family member in the event that you lost your mental capacity.

However, what if a person has already become mentally incapable and an Enduring Power of Attorney has not been executed?

When a person is deemed no longer able to manage their own finances and they have put nothing in place to stipulate who can manage their finances on their behalf, the responsibility for the management of their property and affairs is vested in the High Court through what is known as a ‘Controllership’.

Here’s all the information you need:-

What is Controllership?

A Controller is a person appointed by the High Court of Justice in Northern Ireland under the Mental Health (NI) Order 1986 to manage the property and financial of an adult who is mentally incapable of doing so themselves.

Who acts as Controller?

Typically a Controller will be a family member or friend of the Patient but may be Court Officer if circumstances require.

When is a Controller appointed?

If a Court is satisfied on the basis of medical evidence that a Patient is mentally incapable of managing personal property and financial affairs and the Patient has assets or income requiring management, a Controller should be appointed.

Is Controllership a temporary arrangement?

Once appointed, a Controller will remain in charge of a Patient’s affairs unless the Court is satisfied:-

  • The Patient has recovered.
  • That such an Order is no longer necessary.
  • The Controller is replaced by retirement or otherwise.
  • The Patient dies.
What responsibility does a Controller have and is it a paid role?

A Controller does not receive payment for work undertaken but may recover reasonably incurred expenses to a limited degree. The Controller’s powers are limited to those set out in the Court Order by which the Controller is appointed and will only ever extend to financial and property matters pertaining to the Patient. The Controller has no authority to manage health, social and welfare matters for the Patient.

What if the Patient disagrees and wants to manage their own affairs?

Once a Controller is appointed the Patient is no longer deemed legally capable of undertaking the management of their financial and property affairs. Before a Controller is appointed,  a Notice is served on the Patient advising that the procedure is underway and allowing the Patient the opportunity to object.

Who is the Controller responsible to?

The Controller is normally required to submit an annual vouched account reflecting all expenditure in relation to the Patient’s funds, to the Office of Care & Protection. The Controller cannot take any significant steps in respect of the Patient’s affairs unless authorised by the Court Order under which the Controller appointment is made, or a subsequent authority is obtained from the Master of the Office of Care & Protection.

A Controller may not incur an expense on behalf of the Patient at a cost of £500 or more without Court authority, and should retain receipts for all transactions involving the Patient’s money which exceed a value of £50.00.

How can application be made to be appointed as Controller?

Such an application can be made directly to the Office of Care & Protection or with the assistance of a solicitor experienced in Office of Care & Protection work to guide the applicant through the process.

If you would like any further information on the areas of Controllership, Enduring Power of Attorney or any other area of future planning, please feel free to contact us here or use our confidential contact form below.

Statutory Wills

wills

Guest Blog by Linda Johnston,  Partner , Francis Hanna & Co

Making a Will is one of those things on everyone’s ‘To Do’ list. We all mean to make one but many of us never seem to get round to it.

Putting your own Will aside, have you ever considered whether a Will may need to be made on behalf of someone you know who does not have the mental capacity to make one for themselves??

It sounds like an odd notion – making a Will for someone else. However, if someone has insufficient appreciation or understanding to make a Will, the Court can consider an application for a Will to be made on that person’s behalf – this type of Will is known as a Statutory Will.

Examples of people who may require a Statutory Will to be made on their behalf include the following:-

  • People who may have lost mental capacity to understand and manage their own affairs (for example, due to degenerative illnesses such as Alzheimer’s disease or dementia)
  • Those with a learning disability who do not have the mental capacity to understand the implications of making a Will
  • Those who have suffered a severe brain injury and have become mentally incapable of managing their affairs

Why make a Statutory Will?

The basic purpose of making any Will for most people is to allow them the freedom to leave any possessions, property or money that they have when they die to whoever they choose.

In order to make a Will, a person must understand the purpose of making a Will, and how their assets would be distributed to family or friends upon their death.   A Will is therefore only valid if it is made by a person who has the mental capacity to understand what they are doing.

In cases where this mental capacity is lacking, making a Statutory Will can help to  avoid the scenario where a person’s assets are given to someone they would not wish to benefit.  For example, an unexpected inheritance, personal injury award or other change of circumstances may leave a person with significant assets.   If that person is not mentally capable of making a Will,  their assets are at risk of being distributed upon their death to family members who perhaps they are not in touch with or who they would not have wanted their assets to go to.

A person may not have sufficient mental capacity to make a Will, but may be capable of other financial decisions.   Alternatively, family members of the person without mental capacity to make a Will may believe it to be in that person’s best interests that they have a Will stating how their assets are to be distributed on their death, for tax planning purposes for example or to avoid a situation whereby their assets are distributed unfairly.

How do I make a Statutory Will on behalf of someone else?

In order to have a Statutory Will made, an application needs to be made to the Court. The Court office that deals with applications is called the Office of Care and Protection. The procedure can be quite complex and therefore it is recommended that anyone making an application of this nature seek legal advice.

Many people are unaware of this opportunity.  I have used Statutory Wills for a number of clients to protect their assets and to avoid obvious injustice.

If you would like any further information on this area, please do not hesitate to contact me on the form below or alternatively by email on lj@fhanna.co.uk

Linda

LJohnstonLinda is a Partner in Francis Hanna & Co Private Client department specialising in estate planning, long term care issues and disputed wills. She was the first NI member of Solicitors for the Elderly, a network of specialist and passionate lawyers focusing on the increasing needs of our ever ageing population.

Linda is also a member of STEP (Society of Trust and Estate Practitioners) and is a frequent speaker to parent and carer groups on the subject of future planning to protect the interests of vulnerable and disabled family and friends.