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Court of protection and mental capacity

The Court of Protection is a special court that deals with decisions or actions taken under the Mental Capacity Act.

The court only acts in cases where someone has already lost the capacity to make certain decisions. These could be about their health, welfare, finances or property.

In an ideal world, your relative or friend will already have a valid lasting power of attorney (LPA) in place that appoints chosen people to step into their shoes and manage their affairs when the need arises.

Unfortunately not everyone plans for this situation. They may not know about LPAs or they may have just left it too late, as the LPA must be made while you still have capacity to understand what you have authorised people to do.

If there is no LPA in place and you find yourself needing to take control of someone’s affairs you will have to apply to the Court of Protection become their deputy.

The court will need to be satisfied that the person has lost capacity and will ensure that the actions you plan to take are reasonable and in the persons best interests.

Managing someone’s affairs is a responsible role and the court will want to see that you are capable of carrying out all the tasks involved. You will also be supervised by the court from time to time.

What can a property and financial affairs deputy do?
As a property and financial affairs deputy you will be able to take control of the person’s finances. This will include applying for benefits they are entitled to, paying off their debts or selling their home if the money is needed to fund residential care.

Court of protection fees
There will be court costs when the application is lodged with the court and also after the deputy is appointed. To apply to become a deputy you will need to pay an application fee, currently £365, when the forms are sent to the court. Should the court decide that a hearing is needed, there will be an additional fee. An assessment fee of £100 for the court to assess the proposed deputy’s suitability is also payable.

Ongoing fees include an annual supervision fee of between £35 and £320, plus the cost of an annual insurance bond.
In some circumstances, you will be able to claim to have the fees refunded.

How we can help
If you know or care for someone who no longer has the mental capacity to make decisions about their property or finances we can guide you through the complex process of applying to the court so that you can make decisions for them.

Court of protection solicitors
Our solicitors specialise in court of protection applications and can make applications for you or someone else to be appointed as a deputy for property and financial matters.
We can also act as a deputy ourselves, this may be appropriate if there are no suitable family members, there is disagreement within the family or the individual’s financial affairs are particularly complex.

Statutory wills
Other applications we can assist with include statutory wills. These are appropriate where an individual has lost the necessary mental capacity to sign a will but doesn’t have a will or their will is out of date and it is necessary to ask the Court of Protection to approve a new will.

Finally, we can assist in the appointment of a new trustee, a situation which can arise when an individual who lacks capacity jointly owns land.

If you would like to know more about how we can help you deal with the court of protection, call and speak to our friendly team today. Telephone 01302 320621 or email info@athertongodfrey.co.uk

Court of Protection contact details
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London WC1A 9JA
Email: courtofprotectionenquiries@justice.gov.uk
Telephone: 0300 456 4600

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LPAs may offer protection in ‘incapacity crisis’

A new study published by Solicitors for the Elderly has suggested that the UK is heading for an ‘incapacity crisis’.

The number of people diagnosed with dementia in the UK is around 540,000. This has increased by more than 50% since 2005. It is estimated that of the 12.8 million British residents aged over 65, one in 14 is likely to develop dementia.

If an individual has not signed a lasting power of attorney and they lose the capacity to make their own decisions, their wishes regarding their health, welfare, care and medical treatment may not be followed.

Before a health and welfare lasting power of attorney can be used it must be registered with the Office of the Public Guardian. Less than one million health and welfare lasting powers of attorney have been registered with the Office of the Public Guardian. This suggests that the majority of individuals at risk of dementia have not made proper arrangements for their care.

Solicitors for the Elderly states

‘Nothing offers more protection than putting a health and welfare lasting power of attorney in place.’

Expert advice about these documents and their implications is essential.

Contact our experts for advice and assistance now. You can also find more information about lasting powers of attorney on our web pages.

Author: Katy Burgin

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Why make lasting powers of attorney

Have you ever wondered what might happen if you could no longer manage your own finances or were unable to make your own decisions about where you lived? For some people this may be a worry.

As a nation, we are now living longer, but with that comes age related illnesses such as Alzheimer’s and dementia.

A lasting power of attorney is the legal document that states who has the legal authority to act on your behalf when are no longer able to act for yourself. By making a lasting power of attorney you decide who you would like this to be and these people are called your attorneys.

Lasting powers of attorney are in two parts, one part deals with your property & financial affairs, such as managing bank accounts, paying bills and selling your home, and the other part deals with your health & welfare, such as where you should live and who you should live with, your day-to-day care and consenting to or refusing life sustaining treatment.

Once lasting powers of attorney are prepared and registered, the property & financial affairs part can then be used by your attorneys straightaway. For example, they can take the document to your bank/building society and they can deal with all your banking matters, your utility providers and income providers, etc.

However, the health & welfare part cannot be used until you have lost mental capacity, in other words when you can no longer make your own decisions.

Lasting powers of attorney can only be made whilst you have the mental capacity to do so. When you do not have this ability anymore, it can become a costly and time consuming exercise for your relatives to sort out your affairs.

It is also worth bearing in mind that a property & financial affairs lasting power of attorney can be useful to have in place, not just if you become mentally incapable of managing your own affairs, but also if you become physically incapable or simply do not want the responsibility any more.

If you would like to discuss making lasting powers of attorney, please contact our wills & probate team now.

Author – Rachel Towle

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Unite in the fight against dementia

Set to be the 21st Century’s biggest killer, Dementia will touch each and every one of us at some point.

Receiving a diagnosis of dementia, or living with someone who has been diagnosed, can be difficult, scary and confusing.

The 14th to 20th May is Dementia Awareness Week – a week where people can unite in the fight against dementia.

Atherton Godfrey Solicitors will be playing their part by hosting a drop-in open day from 10am to 3pm on Wednesday 17 May at their office at 8 Hall Gate, Doncaster. Come along and find out more about living with dementia and help raise funds for the Alzheimer’s Society at the same time. No appointment needed – just pop in when you can.

Specialist Wills and Probate solicitor, and Dementia Friends Champion, Vicky Sladdin will be on hand with FREE legal advice on protecting property, Lasting Powers of Attorney and planning for the future. Also on hand will be Citizens Advice Bureau with information on benefits and finances. Confidential meeting rooms are available if needed.

Something not to be missed is the Dementia Friends Information session that will be held between 12.30pm and 1.30pm. This information helps give a better understanding of dementia and gives you the chance to turn that understanding into action. You can also find out how you can become a Dementia Friend.

Refreshments will be available throughout the day – any donations received will go to the Alzheimer’s Society.

Everyone welcome!

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Coping with dementia or just want to know more?

Come along to our drop in open day

Wednesday 17 May 2017

8 Hall Gate, Doncaster DN1 3LU

FREE legal advice on

  • Planning for the future
  • Protecting your property and other assets
  • Lasting Powers of Attorney
  • Also CAB will be on hand with advice on benefits/financial support

Everyone welcome!

WHATS ON …………..

10am – 12.30pm

  • Legal advice from our Wills and Probate expert, Vicky Sladdin
  • Benefit and financial advice from Citizens Advice

12.30pm -1.30pm

Dementia Friends Session – Learn more about what it’s like to live with dementia and turn that understanding into action. Find out how you can become a Dementia Friend.

1.30pm – 3pm

  • Benefit and financial advice from Citizens Advice
    Legal Advice from our Wills and Probate expert, Vicky Sladdin

Refreshments available throughout the day – all donations to Alzheimer’s Society