The Court of Protection has recently decided that an Attorney appointed under a Lasting Power of Attorney was allowed to make gifts from the more…
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Mental incapacity can affect any of us, whether through illness – such as dementia or Alzheimer’s – or serious injury, and we may need some help to manage our finances or welfare.
If someone close to you lacks the mental capacity to manage their own affairs, our Court of Protection solicitors can provide practical help and advice.
In an ideal world, the person affected will have previously made a Lasting Power of Attorney (LPA) and appointed an Attorney to manage their affairs on their behalf. But if an LPA doesn’t exist, you’ll need to apply to the Court of Protection to become a Deputy or ask the Court to make a decision.
The Court of Protection safeguards the rights of vulnerable people and has the authority to appoint a Deputy to manage someone else’s affairs when they lack the capability to do so themselves. A Deputy is sometimes a relative or close friend, but the court can also appoint our lawyers to act as a person’s Deputy where required.
Our Court of Protection lawyers are highly experienced in supporting vulnerable people and their loved ones. We can help to ensure your loved one’s needs are met, providing compassionate, practical support to make dealing with these challenging and sensitive issues as straightforward as possible.
Our Court of Protection department is led by a Law Society accredited practitioner in Mental Capacity (Welfare) reflecting our specialist skills in supporting vulnerable people. Our team includes trained Dementia Friends, as well as members of Solicitors for the Elderly and the Society of Trust and Estate Practitioners (STEP).
Barcan+Kirby has also been recognised by the Law Society with their Lexcel accreditation reflecting the strength of our client services and we are independently regulated by the Solicitors Regulation Authority (SRA).
Our Court of Protection solicitors specialise in:
Speak to a member of our Court of Protection law team now to discuss your requirements.
The role of a Court of Protection deputy carries a lot of responsibility. The exact duties involved will depend on the type of deputyship you apply for and the needs of the person you are supporting.
In general, your job will be to make decisions as authorised by the Court of Protection where the person you are acting for cannot make those decisions for themselves.
You are required to act in their best interests at all times and can be held responsible for any decisions you make which are found not to be in the person without capacity’s best interests.
You will need to make an annual report to the Office of the Public Guardian (OPG) every year, setting out any decisions you have made and the reasons for them.
To become a deputy, you will need to fill out various forms, including an application form and a deputy’s declaration, which detail your personal and financial circumstances and how you would make decisions for the vulnerable person.
You will also need to have your loved one’s mental capacity independently assessed by a registered medical practitioner, psychiatrists, social worker or other approved professional.
All of the relevant documents will then need to be submitted to the Court of Protection and you will need to notify the person you are applying on behalf of that the application has been made and what this means. You will also need to notify anyone else with an interest in the application, such as the person’s relatives.
The Court of Protection will then review your application and either grant or reject the Deputyship, request more information or require you to attend a hearing to decide whether the Deputyship should be granted.
Generally, anyone over the age of 18 can apply to be a deputy. Typically, deputies will be a close relative, such as a spouse or child of the vulnerable person.
However, close friends also often act as deputies and a professional deputy may also be appointed, depending on the circumstances. Professional deputies are usually solicitors with specific expertise in the area of Court of Protection law.
This depends on the type of Court of Protection deputyship you are granted. There are two types of Court of Protection deputy – Property and Financial Affairs deputies and Personal Welfare deputies.
Each type of deputyship can give you the authority to make decisions for a vulnerable person in relation to specific issues.
A Property and Financial Affairs deputy can handle things like collecting a person’s pension and benefits, paying their bills and dealing with their home and other property.
A Personal Welfare deputy can make decisions about issues such as what medical treatment someone receives, where they live, who visits them and day-to-day care concerns, such as their diet and personal care.
If you are acting as a Property and Financial Affairs deputy, you may have the authority to sell the home of the vulnerable person you are supporting if required, depending on what is specified in the Deputyship Order.
It is fairly common for a Deputyship Order to require you to apply to the Court of Protection separately if you wish to sell the home of the subject of the Order.
You may also need to apply to the Court of Protection to sell a property you jointly own with someone who lacks mental capacity.
Our solicitors can help you apply to the Court of Protection to sell a property, ensuring the application is carried out in the right way and all the appropriate information included to help the process go ahead swiftly and smoothly.
Using a solicitor or other trusted professional as a Court of Protection deputy may be appropriate where there is nobody else who can fulfil the role or where there are particularly complex issues or assets that a layman might not reasonably be expected to deal with.
We can advise you on whether we think a professional Court of Protection deputy may be appropriate and are able to act as professional deputies where required.
For Court of Protection matters, the legal fees and expenses involved can usually be recovered from the assets of the person you are acting as deputy for.
We provide fixed fee legal services for straightforward Court of Protection issues, such as deputyship applications. This gives you complete certainty over the costs involved.
For more complex matters, we may agree an hourly rate and an estimate of the costs involved. In such cases, we will keep you regularly updated about any expenditure, so you can keep control of the costs at all times.
We also have a contract to provide legal aid to eligible clients in some health and welfare matters. Please contact a member of the department to see if your situation is covered by legal aid.
For a no obligation quote, please contact us on 0117 963 6202 or complete our online enquiry form.
A Lasting Power of Attorney (LPA) is a legal document that a person puts in place themselves, nominating someone to make decisions for them if they later lose the mental capacity to do so themselves.
A Court of Protection deputyship is something you apply for with respect to someone who has already lost mental capacity and who does not have an LPA in place.
It will ultimately be up to a judge to decide whether someone has mental capacity or not and, therefore, where it is appropriate to grant a deputyship to assist them with making decisions.
The judge will heavily rely on the assessment made by during the application by an independent registered professional, who will usually be one of the following:
This will depend on the circumstances, but it will usually take anything up to around 6 months for the deputyship to be granted.
To make the process as fast as possible, it is strongly recommended to work with a legal team experienced in Court of Protection applications. Our lawyers can ensure there are no errors in your application and all of the necessary supporting information is included, minimising the risks of any delays or of your application being rejected.
The deputyship order will specify whether you can make gifts, including gifts of money, and any rules for doing so. The order may include a limit on the level of any gifts you are allowed to make, the gifts will need to be reasonable and must not impact the level of care the person you are acting as deputy for receives.
If you want to make a large one-off gift, for example for Inheritance Tax purposes, you will need to apply to the Court of Protection for specific permission to do so and our team can help you with any application you wish to make.
You may be able to create or change a Will for a loved one who has lost mental capacity by applying to the Court of Protection for a ‘statutory Will’.
There are various circumstances where the Court of Protection may be willing to create a statutory Will, including where:
If you believe a deputy is making decisions that are not in the best interests of the person they are act for, you can register your concerns with the Office of the Public Guardian who regulate deputies. If the Office of the Public Guardian feels it is appropriate, they can then investigate the situation and apply to the Court of Protection to take action as required, including revoking the deputyship is necessary.
Situations where you may wish to raise a concern can include where you believe:
You can also object to the appointment of a deputy if you believe they will not act in the person’s best interests. You should usually be notified of the deputyship application as part of the application process, giving you an opportunity to make an objection to the Court of Protection. It may be important to receive legal advice on your objection and assistance in any subsequent litigation.
Yes, you can have two or more people acting as deputies. There are two ways this can work:
Which type of arrangement is the most appropriate will depend on the circumstances, which is something our team will be happy to advise you on.
For more insights into various issues related to Court of Protection deputyship, please take a look at our Court of Protection blogs.
We support individuals and families across the UK with all aspects of Court of Protection deputyship from our 6 offices in Bristol and the surrounding area located in Bedminster, Clifton, Horfield, Kingswood, Queens Square and Thornbury. We can also offer home visits to clients where appropriate.