Sadly there are times in a person’s life when they are no longer able to deal with matters. If a person no longer has mental capacity this means that they need the help of and support of others to act on their behalf. Once it becomes apparent that someone will need help in managing their affairs, we will meet with those involved to discuss how we can help to make matters easier for you and your family.
If there is no Lasting Power of Attorney in place then an application will need to be made to the Court of Protection for a Deputy to be appointed. If the Court is satisfied with the contents of the application it will make an order appointing a Deputy who then becomes responsible for the management of the incapacitated person’s financial affairs subject to the provisions of the Mental Capacity Act 2005.
We offer the following advice and services:
- Statutory Wills;
- Application to the Court of Protection and Deputyship;
- Advice to Deputies;
- Advising the elderly and vulnerable clients;
- Court of Protection issues including guidance should there be a dispute between family members or the possibility of any financial abuse.
What is the Court of Protection?
The Court of Protection is a specialist Court that protects people and their assets if they are deemed vulnerable and to be lacking mental capacity. They have the power to appoint someone called a Deputy to manage a person's affairs if they can no longer do this for themselves and do not already have a Lasting Power of Attorney in place. They can also make stand alone orders in relation to the creation of a Statutory Will if someone has lost mental capacity and does not have a Will in place.
When would the Court of Protection appoint a Deputy?
There are two notable reasons why a Deputy would be appointed. One is that someone has lost mental capacity and does not have a Lasting Power of Attorney in place. The other is because the attorneys appointed under a Lasting Power of Attorney have been removed due to concerns over how they were acting. Please note the Court of Protection only grant Deputyship Orders appointing Financial Deputies. They do not often appoint health and welfare Deputies save for exceptional circumstances. The Court of Protection may also deem, after seeking expert advice that a person has capacity to understand some things but not other and a limited deputyship may be granted. This is less common and more likely for short term capacity issues caused by brain injury or more recently Covid-19.
Who decides if someone lacks mental capacity?
As part of the application process a Capacity report has to be completed by a suitable person such as a GP or clinical psychiatrist or Social Worker who has been in contact with the person over a period of time.
Who can be a Deputy?
Usually it is a family member solicitors end up speaking to about Deputyship and they can make the application to be appointed as a Deputy. where there are concerns over this or objections then a professional such as a Solicitor may be appointed to act with the family member or solely as an independent party. The Court of Protection also has panel deputies they can appoint or the local authority can apply where there are no family members or no family members willing to apply and take on the role.
What decisions can a Deputy Make?
This very much depends on the application and the order granted by the Court which contains all of the Deputies powers, however as mentioned above these are likely to be financial decisions not health and welfare ones.
How long does an application to the Court of Protection take?
It can take 6-8 months unless there are any complications in which case be prepared for it to take up to a year.