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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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Worried about what the future may hold?

The plight of Ashley, the vicar in Emmerdale, diagnosed with early onset dementia, has prompted many of us to think about how we would cope if we or a loved one were to lose mental capacity. It’s a frightening thought, but it is something we can plan for and make decisions about now.

A Lasting Power of Attorney is a legal document that lets you give someone you trust the authority to handle things on your behalf. There are two types of LPA:

Property and Financial Affairs LPA

A Property and Financial Affairs Lasting Power of Attorney allows you to give someone authority to deal with your bank accounts, pay bills, handle other finances and sell or maintain your property for you, even if you are still able to do so yourself, but prefer not to for any reason.

Health and Welfare LPA

A Health and Welfare Lasting Power of Attorney allows you to give someone authority to make decisions about your health and welfare, but ONLY in the event that you are unable to do so yourself.

The important thing to remember is that the LPA has to be made whilst you have the mental capacity to create it and it cannot be used until it is registered with the Office of the Public Guardian. Once registered, it does not have to be used unless it becomes necessary at some point in the future.

The person making the LPA has to instruct the solicitor personally to prepare the document; it cannot be prepared on someone else’s instructions on your behalf because the solicitor must see you to ensure that you understand what effect the LPA will have.
To this end, a certificate of understanding will be needed; your solicitor can act as the certificate provider for the Lasting Power of Attorney, if you wish. Alternatively, a registered professional such as a doctor or nurse, or someone who has known you well for over two years could act as a certificate provider; it is your choice.
If you would like to know more about planning for the future or just want a chat about your options, call our friendly team today on 01302 320621 or email info@athertongodfrey.co.uk

Atherton Godfrey – “Efficient, understanding and professional” (Wills & Probate client)

Author: Gail Harris