What is the Court of Protection and how can it help you and your loved ones?
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There may come a time when you need to make an application to the Court of Protection to manage a loved one’s financial matters or health and welfare issues. In this event, it’s important to speak to a specialist legal advisor to help guide you through the process and explain your options to you.
We speak to Janine Guthrie, an associate chartered legal executive at Gloucestershire-based law firm Willans LLP, to find out more about the Court of Protection and what happens when you are appointed as an attorney or deputy.
Q: What is the Court of Protection and what types of decisions can it make?
A: The Court of Protection was set up under the Mental Capacity Act 2005 for people who are unable to make decisions for themselves regarding their money, property, welfare and health. The court can decide whether someone has mental capacity to make a particular decision and can appoint a deputy (usually a friend or family member) if there is a need for someone to manage their affairs on their behalf.
Q: What is the Office of the Public Guardian?
A: The Office of the Public Guardian (commonly referred to as the OPG) is a government body that oversees the activities of deputies and attorneys, as well as the registration of lasting powers of attorney (LPAs) and enduring powers of attorney (EPAs). The OPG will investigate any reports of an attorney or deputy who is not acting in the incapacitated person’s best interests.
Q: What is the difference between a deputy and an attorney?
A: An attorney is a person who is appointed under an LPA or EPA by the donor (the person who they’ll represent). The donor must have mental capacity when making LPAs and the documents are made in preparation that if the donor loses capacity or needs assistance, a legal framework is in place for that to happen.
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A deputy is a person appointed by the Court of Protection to manage an incapacitated person’s property and finances and/or health and welfare if they do not have mental capacity to do so themselves.
Q: When would the court appoint a deputy?
A: If someone has not made an LPA and then loses mental capacity, the court can appoint an individual or a professional person to manage the incapacitated person’s property and financial affairs and/or their health and welfare. This person is called a deputy.
Q: What can a deputy do?
A: All decisions made by a deputy must be made in the incapacitated person’s best interests. A court order will determine the types of decisions the deputy can make. Typically, for property and financial affairs, the deputy can pay bills including care costs, take financial advice, deal with bank and building society accounts and utility providers. A court order may also allow for a property to be sold and another property purchased.
However, these decisions should be considered carefully and legal advice should be taken with decisions that require court approval, such as giving large sums of cash to a relative or the sale of a property.
A deputy can also make decisions around a person’s health and welfare, including where the incapacitated person should live, consent for treatments and who they should or shouldn’t see.
Q: Can I make a will for someone else if they can’t do it themselves?
A: If someone hasn’t made a will whilst they have mental capacity, or if they have an out-of-date will, an attorney or deputy does not have the automatic right to make a new will for them. They will need to make an application to the Court of Protection for a statutory will, and the court will take into account the person’s past and present wishes and, in particular, any previous wills that person has made.
Q: How does someone lose capacity and who decides if someone lacks capacity?
A: Typically, losing capacity is caused by illnesses such as dementia, Alzheimer's, a stroke, brain injury, acute PTSD or severe learning disabilities. It is the responsibility of the Court of Protection to decide if someone lacks capacity and this decision is always specific to the issue in question.
Ultimately it is the Court of Protection who decides whether someone lacks capacity. A person may lack capacity to make a decision in relation to their finances, but be able to make a decision in relation to their health treatment. Any application to the court for a deputy is always accompanied by a capacity assessment which often gives the court the information it needs to make its decision. The court can give a direction for further information should that be necessary.
For legal advice on the Court of Protection and deputyship, contact Janine on 01242 541568 or email@example.com.
Alternatively, visit willans.co.uk for more information.