What is a controller?

What is a controller?

Contents

What is a controller?

Controllers are appointed by the Office of Care and Protection (OCP) to manage the property and affairs of someone who lacks capacity (known as 'Patients') to make certain decisions for them.

Why might you need a controller?

If a person has not appointed an attorney in an enduring power of attorney (EPA), or if they don't have the mental capacity to make an EPA, there might be the need for the OCP to appoint a controller.

How do I become a controller?

If the person you care for needs certain decisions made on their behalf, but has not appointed or is unable to appoint an attorney, then you will need to apply to the OCP.

The application forms to become a controller are available on the Department of Justice website. See Becoming a controller and How to apply for some guidance to assist you with making the application.

What is a controller order?

A controller order is the document given to you by the OCP, which sets out the powers of a controller.

If you have been appointed as a controller, your powers may include receiving income, such as benefit payments, retirement pension, occupational pension, or interest and dividends earned on investments. The order may also authorise you to receive capital, such as money from banks, building societies or other financial institutions held on behalf of the patient, and to spend this money appropriately on their behalf.

Registering a controller order

Once a controller order is made, you will receive a number of sealed copies. The order will need to be 'registered' with any organisation that you wish to deal with on behalf of the patient e.g. their bank, building society or social security office. This provides proof of your appointment.

Seeking authority to act outside the scope of the controller order

If you wish to carry out a function that is not permitted by the controller order then you must apply in writing to the OCP, advising what action you wish to take and providing any additional information to help the OCP come to a decision regarding the action. There is not normally any need for you to attend at the OCP in person. You will require authority for any of the following:

  • Making loans or a gift
  • Buying or selling a house
  • Granting or giving up leases or tenancies
  • Varying any authorised allowances
  • Varying the Patient's investments
  • Incurring an overdraft
  • Taking or defending legal proceedings
  • Entering into a Deed of Covenant

Supervision of controllers

The controller will submit accounts to the OCP annually, or at such other interval as is directed. It is the OCP's function to inspect these accounts and ensure they are in compliance with the Controller Order.

The accounts don't need to be in a specific format, but should record all money received and payments made during the year on behalf of the person who lacks capacity.

It is advisable that controllers keep all documents supporting their role as controller, for example, receipts for money spent, bank statements, invoices and all correspondence.

If a controller fails to submit accounts, or there is suggestion of misappropriation of funds, the OCP may decide to investigate the decisions that they have made as controller. This may include asking for more information or asking a Lord Chief Justices visitor to visit the person whose affairs they manage. If there is any foul play regarding misappropriation of funds the OCP will refer the matter to the appropriate authorities.

If necessary, the OCP may discharge the controller and appoint a new controller (e.g. a solicitor or accountant) in their place. If there is no person who is able to act as a controller, then the OCP can appoint the 'Official Solicitor' to act as controller.

The OCP will apply varying levels of supervision for controllers. The level of supervision depends on various factors, including:

  • The complexity and value of the estate of the person who lacks capacity
  • The relationship and amount of contact between the controller and the person who lacks capacity
  • The type of decisions the controller is being asked to make
  • The controller's experience or past record as a controller
  • Support provided to the person who lacks capacity by family, friends and/or professionals

How does supervision work in practice?

Supervision may involve any or all of the following:

  • Requiring a controller to provide an annual report to the OCP
  • A Lord Chief Justice's visitor coming to visit the patient.

There are three types of visitor:

1. Medical visitors, who are senior consultant psychiatrists visiting Patients for specific purposes on the directions of the Court

2. Legal visitor, who is a senior qualified legal adviser

3. General visitors, who may visit Patients.

The visitor will be acting on the OCP's direction and will report to the OCP if they have any concerns on how the controller order has been operating. The controller will not have sight of this report.

  • Regular contact with the controller and others with an interest in the welfare of the person who lacks capacity

The OCP may ask a controller to provide specific information to ensure that they are carrying out their duty as a controller and properly managing the patient's affairs. For example, they may be requested to provide more information about a decision they have made or to provide supporting documents about a financial transaction.

The OCP may also contact social services or health authorities to request copies of the health and social care records of the person lacking capacity or request copies of care records from registered care homes.

Short procedure if the person lacking capacity's assets are small

If it appears to the OCP that the property of the patient doesn't exceed £20,000, or the OCP feels it is appropriate for some other reason, then it may decide not to appoint a controller. The OCP can instead make an order directing an officer of the Court or some other suitable person named in the order to deal with the person lacking capacity's property and affairs, in any manner authorised by the Order. This will save on costs in comparison to a controller order.

Fees

Fees are charged by the OCP for appointing controllers, and for various applications and directions surrounding a controller order. These fees are statutory, meaning they are set by Parliament.

Supervision fees are normally paid or reimbursed from the funds of the person lacking capacity. If the person lacking capacity can't afford to pay, they may be eligible for fee exemption or remission.

Details on the fees can be found here.

Further information

Further information can be found on the Department of Justice website.