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Court of Protection Solicitors and Incapability

If a person becomes incapable, through old age, illness or an accident, of running their own financial affairs, then someone will have to be appointed to deal with their affairs for them.

The Court of Protection and the Office of the Public Guardian

If there is no Lasting or Enduring Power of Attorney in place and someone loses the ability to manage their financial affairs, it is likely that the Court of Protection will have to be involved. Those appointed by the Court to manage another’s financial affairs are called Deputies.

The Court of Protection is a special Court based in North London which exists to make decisions for people who can no longer manage their financial affairs,  including making decisions as to who should be appointed to manage their affairs for them.

The OPG is a wing of the Court of Protection and exists to supervise people who are appointed to manage other people’s financial affairs.

What is the role of the Court of Protection?

The Court of Protection deals with applications relating to any individual who lacks the mental capacity to manage their own affairs, be they property and financial affairs or health and welfare matters.

There are many reasons why an individual may lose mental capacity such as resulting from an accident, mental deterioration due to Alzheimer’s disease or another form of dementia or a birth condition such as cerebral palsy, for example. Jointly, the Court of Protection and the OPG protect the interests of such vulnerable people and ensure that their affairs are correctly managed so that they are not taken advantage of by another party.

In situations where a Power of Attorney is not in place prior to the individual losing mental capacity or their Attorney is no longer able to act for them, the Court of Protection will appoint a Deputy to manage the individual’s affairs. The OPG will monitor their conduct on an annual basis, which involves completing a declaration which demonstrates how they have spent the money of the individual lacking capacity and what decisions they have taken on their behalf

Court of Protection Deputies – their role explained

If you wish to become a Deputy for somebody, you must apply to the Court of Protection. One of the major differences between an Attorney and a Deputy is that the former is appointed by the individual concerned and the latter by the Court.

The Court of Protection appoints a Deputy to oversee and manage the affairs of an individual who lacks the capacity, be it property and financial affairs or health and welfare matters.  Anybody can act as a Deputy on behalf of an individual, including family members or friends. They are then monitored by the OPG on an annual basis to ensure that they are fulfilling their role correctly.

There are however key advantages to employing a professional such as a solicitor to act on the individual’s behalf:

  • There may not be anybody willing or able to carry out the role
  • They have been injured in an accident and making or have made a claim for compensation, which can often run to hundreds of thousands, even millions of pounds
  • A professional is accustomed and experienced in handling large sums of money which eliminates worry for the family
  • The family can concentrate on other things, such as caring for the individual who is making the claim
  • If professional care is in place, it is a challenge to manage their finances in addition to the cost of therapies, disability equipment and other living expenses, for example
  • A professional will consult with the family to discuss their financial needs and how they can best assist
  • A professional is able to make informaed decisions rather than emotive ones.

Many people are worried about using a professional deputy because they fear a loss of control, however an experienced professional is there to make life easier, not harder. Contact our team of specialist solicitors today for expert legal advice and guidance.

If someone lacks mental capacity, can they still make a Will?

An application to the Court of Protection will need to be made – for what is known as a statutory Will to be made on behalf of the person without capacity. Click here to find out more about statutory Wills

How Our Court of Protection Solicitors Can Help

Our experienced team can help you with;

  • all applications to the Court, including for the appointment of Deputies
  • the execution of statutory Wills
  • obtaining orders for the sale of property
  • advising and assisting Deputies in connection with their duties and responsibilities – including the preparation of annual accounts and income tax returns.

Our Solicitors also advise clients in Court of Protection cases locally throughout Wiltshire, Dorset, Hampshire and Somerset and further afield across England and Wales.

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