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.
A person can take sensible steps whilst mentally and physically capable of doing so, to put in place measures that would reassure them that their financial affairs would be managed by a trusted family member in the event that they lost their 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 'Controllership'.
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.