Read our latest article by solicitor Emma McCaul on Controllership Orders.
What is a Controllership Order?
When a person is no longer in a position to manage their financial affairs due to mental incapacity (known as a ‘Patient’) and has not previously appointed a person/persons to act on their behalf by having an Enduring Power of Attorney in place, an application can be made to the High Court of Northern Ireland (The Office of Care and Protection specifically) for a ‘Controllership Order’.
Who can apply to become a Controller?
An application to be a Controller can be made by a relative, friend, professional and in some case the Court will choose a person following a referral made by a Patient’s Social Worker. A Controller will have a considerable number of responsibilities and the role can be demanding and time consuming (dependant on the size of the Patient’s assets). Any applicant should consider whether they have the time to fulfil such a role.
An application for Controllership will require a full of note of a Patient’s details including assets, liabilities, income and outgoings and requires medical evidence that the Patient is mentally incapable of managing their own affairs. Any proposed Controller(s) will also require a personal reference to be submitted with their application. Appropriate notice will be given to any interested parties of the application and any objections they may have will be dealt with.
The Court will make an Order appointing any Controller(s) and detailing the specific powers conferred upon them in relation to the management of the Patient’s financial affairs. The Patient’s assets will continue to be monitored/regulated by the Court.
What duties does an appointed Controller have?
Any appointed Controller(s) will manage the day-to-day needs of the Patient and look after any bills requiring payment. They will ensure any property is kept in good repair and insured appropriately. The Court has to authorise any use of the Patient’s capital not stipulated in the original Order. The Controller(s) must liase with the Court about any investments, which are usually made by the Office of Care and Protection and about the sale of property. No significant steps can be taken in respect of the Patient’s affairs unless authorised by the Court Order, or a subsequent authority/Order obtained from the Court.
The Controller(s) have an obligation to submit annual accounts to the Court and may have to take out a security bond in order to safeguard the Patient’s assets (again, dependant on the size of the Patient’s assets). Any out of pocket expenses incurred by the Controller(s) can be reclaimed from the Patient’s assets.
A Controllership Order will remain in force until:-
- The Court are satisfied the Patient has recovered;
- Such Order is no longer necessary;
- A Controller is replaced;
- The Patient becomes deceased.