Court of Protection Solicitors

What is the Court of Protection and what does it do?

If a person suffers with mental capacity issues, they may be unable to make decisions for themselves. The role of the Court of Protection is to make decisions on their behalf, or to ‘deputise’ someone else to do so. They will decide what is in the individual’s best interests in every case.

Loss of capacity is not always easy to determine, and capacity can fluctuate with certain medical issues. The legal test to measure a person’s understanding may differ, depending on the issue at hand.

What is Deputyship?

A person may lose the ability to understand and manage their financial affairs. If they have made a Lasting Power of Attorney ahead of time, their Attorneys must ensure that the document is registered, and can then step into the role of managing the person’s finances.

If you would like more information about making a Lasting Power of Attorney, click here.

If it is no longer possible for the person to make a Lasting Power of Attorney, then someone must apply to the Court of Protection to become their financial Deputy. Evidence of loss of capacity will be required, along with details about the person’s assets, income and financial responsibilities. The Court will also consider the suitability of the applicant.

An application can take many months to be processed, so taking advice as early as possible is recommended. Our Private Client team can assist you with the application process and with further guidance once your Order has been granted. Once you become a Deputy, you must adhere to the Court’s directions, keep records, file annual reports and you will be supervised by the Office of the Public Guardian.

Health and Welfare Decisions

Deputyship for managing a person’s welfare is rarely granted; the law provides that ‘best interests’ decisions may be made by those interested with someone’s health and care, and this is usually sufficient.

However, it may become necessary for a serious medical decision to made on behalf of an incapacitated person. For ongoing medical conditions, a series of decisions may need to be made. There may also be disagreements as to the best treatment or care for a person.

Our Private Client team can offer advice on how to navigate health and welfare decision-making for your loved one.

Statutory Wills

Our Private Client team can offer advice on how to navigate health and welfare decision-making for your loved one.

Gifting and one-off Applications

Even with a Deputyship Order or a Lasting Power of Attorney in place, there may be actions which a Deputy or Attorney is not authorised to take. A specific Order from the Court of Protection may be required, if you wish to:-

make large gifts on behalf of an incapacitated person
take equity release on their property
enter into a Deferred Payment Scheme with a local authority for care funding
sell their property to a close relative, either at full market value or at an undervalue

If you are unsure whether you are permitted to deal with a person’s assets in a specific way, please contact our Private Client team for advice.

Joint Property Ownership and Loss of Capacity

If a couple jointly own their property, there may be unforeseen issues with selling that property where one or both owners have lost mental capacity. Joint ownership of property is a form of trust. In some circumstances, you may require an Order from the Court of Protection to replace the incapacitated owner, in their capacity as a trustee.

As an Attorney, Deputy or joint owner, please contact our Private Client team to discuss whether you will need to make a Trustee Application to the Court of Protection, before you embark upon selling a property.

Contact a member of our Court of Protection Solicitors team today.

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