When a family member lacks the mental capacity to make important financial decisions, our Court of Protection Solicitors can help.
If you’ve taken on the responsibility of managing another person’s affairs, we can provide expert legal advice, assistance and representation.
We can also give legal advice on and prepare Lasting Powers of Attorney, and assist if there’s a dispute over the appointment or revoking of powers of Attorney
Since a legal settlement may need to last for many years, it’s really important to get ongoing financial advice so you can get the outcome you want.
So contact our friendly and approachable team to find out how we can help you.
More Information on the Court of Protection
The Court of Protection can make decisions on financial or welfare matters for people who can’t make decisions for themselves.
The Court can decide if someone has the mental capacity to make decisions, appoint Deputies to act on their behalf or make one-off decisions or declarations relating to someone who lacks capacity.
It can also act if there are emergency applications, issues regarding a Lasting Power of Attorney, consider applications to make statutory Wills or gifts and make decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
Furthermore, the Court of Protection can resolve disputes between individuals involved in that person’s care, such as family members and representatives of NHS Trusts and local authorities.
This is a complex area of law and managing another person’s affairs might seem an intimidating prospect.
However, our Court of Protection Solicitors are experts in this field, so we can reduce the burden and help ensure you act responsibly and in your loved one’s best interests.
Funding Your Case
We’ll confirm to you at the outset, or as soon as it becomes clear what funding options are available to you and if a fixed fee is appropriate.
Matters relating to finance and property are usually funded from the estate of the person who lacks capacity. Legal aid may be available in certain welfare cases.
We will seek to provide you with an estimate of costs and let you know as soon as possible and agree with you how any additional work is to be charged.
We’re recognised as leaders in this field by independent legal guides Chambers and Partners and Legal 500.
Frequently asked questions
- When does a person lack capacity?
'Mental capacity' means the ability to make your own decisions and choices. People may lack capacity due to illness or a disability. Section 3 of the Mental Capacity Act holds that a person will be deemed unable to make a decision for themselves if they’re unable to:
- Understand the information relevant to the decision
- Retain that information
- Use or weigh that information as part of the process of making the decision
- Communicate his decision (whether by talking, using sign language or any other means)
Someone will be considered to be lacking capacity if they aren't able to do one or more of these things.
- What is the Mental Capacity Act?
The Act, which came into force in 2007, established a legal framework which sets out how decisions should be made by and on behalf of adults whose capacity to make specific decisions is in doubt.
Specific additional provisions were also added to the Act in 2008 to deal with the concerns arising from a situation where an individual is deprived of their liberty.
The Act deals with the making of decisions in relation to:
- Personal welfare (including deprivation of liberty matters)
This can include, for example, decisions as to where an individual should live, what care they should receive and who they should have contact with.
It can also include issues such as whether a person has capacity to make decisions about sexual relations or to make decisions regarding contraception.
- What is Deprivation of Liberty?
There’s no single definition of what constitutes a deprivation of liberty and it can be hard to work out if legally, an individual is being deprived of their liberty. However, following case law, an "acid test" has been established:
- Does the person lack capacity to consent to the arrangements?
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
When trying to work out if someone is deprived of their liberty, it isn’t relevant to consider whether the person complies with the restrictions or objects to them, whether the deprivation is relatively normal for that person or others with similar difficulties or diagnoses, or the purpose of the placement.
- Who can be deprived of their liberty?
Any individual could potentially be deprived of their liberty. However, the Mental Capacity Act and the Court of Protection, with regards to deprivation of liberty cases, are only concerned with those individuals who lack capacity to make decisions about their care and/or residence and who are aged 16 or over.
There are different procedures for authorising a deprivation of liberty depending on the age of an individual and where the deprivation of liberty has occurred or will occur.
- For those over 18 years of age who are in a hospital or care home, authorisation should be sought according to the Deprivation of Liberty Safeguards (DOLS).
- For those aged between 16-18 and/or residing somewhere other than a care home or hospital, authorisation needs to be sought from the Court of Protection.
- For those aged under 16, authorisation may be available under the Mental Health Act 1983(if they suffer from a mental disorder sufficient to bring them within that Act). Otherwise, an application would need to be made to the High Court or to the Principal Family Registry, either as an application under section 25 Children Act 1989, or under the inherent jurisdiction of the High Court.
- What is a deputy?
A Deputy is a person appointed by the Court of Protection to manage the personal welfare or the property and affairs of another person, who lacks the mental capacity to manage them themselves.
A Deputy can only act under a Court Order from the Court of Protection. This order sets out the Deputy’s powers and entitles the Deputy to act on behalf of the person lacking capacity.
A Deputy will not be required if the person lacking capacity has previously made a Lasting Power of Attorney. In this case, provided the Lasting Power of Attorney has been properly registered, the Attorney can continue to make decisions on behalf of the person lacking capacity.
- Difference between a Lasting Power of Attorney and a Deputyship
Both Lasting Power of Attorney’s and Deputyships are legal methods by which decisions can be made for people who lack mental capacity. The key difference between the two is that:
- A Lasting Power of Attorney is made by the person before he or she loses capacity
- A Deputyship application is made by a third party after the person loses capacity
The person therefore has more control over the Lasting Power of Attorney process and choice of Attorney and the Lasting Power of Attorney may therefore be more likely to reflect the person’s own wishes.
- Why set up a Deputyship?
A Deputyship may be required where a person loses capacity to make a decision, relating either to their finances or their welfare and there is no Attorney in place.
The loss of capacity may be from illnesses like dementia or acquired brain injury and the decisions to be made are varied and include:
- Collecting income and benefits
- Selling assets in order to pay care home fees.
- Managing a compensation award
- Making decisions about where someone lives or what medical treatment they receive.
- Are there different types of Deputyship?
Yes. A Deputy can be appointed by the Court to act as:
- A Property and Affairs Deputy- making decisions about property and financial affairs, including the sale and purchase of real property
- A Personal Welfare Deputy- making decisions about health and personal welfare, including treatment options. However, the Deputy cannot refuse consent to life-sustaining treatment
- Who can be a Deputy?
Any person over the age of 18 can be a Deputy. Any prospective Deputy must declare any criminal convictions or bankruptcy arrangements to the Court when applying to become a Deputy and these could lead to the application being refused.
In many cases, a spouse, partner or close relative will be the Deputy. In cases where there is no-one willing or able to take on the role, then the local authority can do so (in low value estates) or a professional Deputy, such as a Solicitor, can be appointed.
Where the person lacking capacity has a large estate, then a professional Deputy will usually be appropriate.
- What are the powers and duties of a Deputy?
A Deputy’s powers derive from the Deputyship Order made by the Court of Protection and the Deputy cannot exceed those powers. The Order may give wide powers to the Deputy, or it could set limits to those powers, for example providing that large items of expenditure or investment cannot take place without further permission of the Court.
The Deputy’s duties are set out in the Mental Capacity Act 2005 and in particular follow the general principles set out in the Act:
- A person must be assumed to have capacity unless it is shown otherwise
- A person cannot be treated as unable to make a decision until all practicable steps have been taken to help them, without success
- A person cannot be treated as lacking capacity merely because they wish to make an unwise or eccentric decision
- Any decisions made on behalf of a person must be in the person’s best interests
- Before making a decision, consideration must be given as to whether its purpose can be achieved in a way that is less restrictive of the person’s rights and freedom
In addition to following these general principles, the Court of Protection places numerous obligations on the Deputy, as a safeguard to the person lacking capacity. These include obtaining a security bond, complying with supervision by the Court and filing annual reports and accounts.
- How are Deputyships supervised?
When a Deputyship Order is made, the Office of the Public Guardian will allocate the Deputyship to a category of supervision.
This may range from close supervision (particularly for new cases in the first year or two) to a light touch supervision in straightforward cases. The Deputy’s reporting obligations will depend on the level of supervision.
- How can a Deputyship be terminated?
A Deputyship Order is terminated when the person lacking capacity dies or recovers capacity, or if the Order is limited in time and expires.
It can also be discharged by Order of the Court or Protection or on application by the Deputy, if he wishes to retire or resign.
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Simpson Millar Solicitors are a national law firm with over 500 staff and offices in Bristol, Cardiff, Lancaster, Leeds, Liverpool, London and Manchester.