When illnesses or accidents result in individuals losing their mental capacity, the Court of Protection plays a vital role in protecting their interests and making decisions on their behalf. With the appointment of Deputies and the involvement of the Court, vulnerable individuals can receive the necessary support and guidance to manage their finances, welfare, and legal matters.
Planning ahead with tools like Lasting Power of Attorney can also provide individuals with a sense of control and peace of mind. Seeking expert advice and support is crucial to navigating the Court of Protection process effectively and ensuring the best outcomes for those in need.
We have compiled frequently asked questions regarding the role of the Court of Protection, the appointment of deputies, the concept of mental capacity, and the process of making legal decisions in the aftermath of an illness or accident.
What is the Court of Protection?
When accidents or circumstances lead to individuals losing the mental capacity to make their own decisions, the Court of Protection comes into play. The Court of Protection is a specialist court in England and Wales that is dedicated to safeguarding the interests of vulnerable individuals who lack the ability to make decisions about their finances, compensation, health, and welfare. It was established under the Mental Capacity Act 2005 and has the authority to make important decisions on behalf of these protected individuals.
What Powers do the Court of Protection have?
The scope of the Court of Protection’s powers is extensive and covers various aspects of decision-making and protection of vulnerable individuals. Some of the key powers of the Court of Protection include:
- Assessing an individual’s mental capacity to make decisions
- Appointing Deputies to act on behalf of protected persons
- Granting permission for one-off decisions on behalf of protected persons
- Making decisions regarding statutory wills or gifts
- Determining cases involving deprivation of liberty under the Mental Capacity Act 2005
What is a Deputy?
A Deputy is someone formally appointed by the Court of Protection to make decisions on behalf of a protected person. They act as the legal representative for the protected person and carry out their responsibilities in accordance with the Court’s Deputyship Order and the Mental Capacity Act.
There are two main types of Deputies: property and financial Deputies, and health and welfare Deputies. Property and financial Deputies handle matters related to financial decisions, selling or buying property, claiming benefits, and ensuring the protected person’s financial needs are met. Health and welfare Deputies make decisions about where the person lives, their daily care, medical treatment, and care arrangements. The Court of Protection specifies the scope of a Deputy’s authority in the Deputyship Order.
Who can be a Deputy?
Deputies can be close relatives, such as spouses or parents, or professionals such as solicitors. The role of a Deputy is crucial in managing the financial and welfare affairs of the protected person.
Anyone can become a Deputy, although the Court of Protection prefers to appoint family members or close friends who have a personal connection to the protected person. If no suitable family member is available, a professional, such as a solicitor or accountant, may be appointed as a Deputy. The key consideration is that the appointed Deputy acts in the best interests of the protected person and has the necessary skills and knowledge to fulfil the role.
Can there be more than one Deputy?
Yes, the Court of Protection allows for the appointment of multiple Deputies. They can act jointly, meaning all Deputies must agree on decisions, or jointly and severally, meaning Deputies can make decisions individually or together. However, the Court generally discourages the appointment of more than three individuals as Deputies to avoid complexities, increased costs, and potential delays.
What does Deputy have to do?
Once appointed, a Deputy has a range of responsibilities and duties to fulfil. Some of the key roles and responsibilities of a Deputy include:
- Making financial decisions and managing the protected person’s property and financial affairs
- Ensuring the protected person’s financial needs are met, including paying bills and providing for dependents
- Making decisions regarding the protected person’s health and welfare, including care arrangements and consent to medical treatment
- Regularly assessing the protected person’s mental capacity to make decisions
- Seeking the Court’s approval for decisions outside the scope of the Deputyship Order
Are there Limitations to Deputy Powers?
Deputies have certain limitations on their powers. For example, they cannot make decisions regarding life-sustaining treatment, create or amend a will, or make significant gifts using the protected person’s money. Deputies also cannot hold money or property in their own name on behalf of the protected person. Any decisions made by the Deputy must be in the best interests of the protected person and aligned with the principles of the Mental Capacity Act 2005.
Is a Deputyship Order the same as a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows someone you trust (family member or a close friend) to act for you if you are no longer able to make decisions by yourself. Providing you have mental capacity to make a LPA, you can decide who to appoint as your Attorneys.
There are two types of LPA to consider. You can make a Property and Finances LPA which allows your Attorneys to manage your bank accounts and action any maintenance or sale of your property.
The second type is the Health and Welfare LPA which allows your Attorneys to make important decisions about your health and welfare, such as whether you have an operation and what care you may require.
Someone can apply for a Deputyship Order to make decisions regarding your health and welfare and property and finances if you do not have Lasting Powers of Attorney in place and do not have mental capacity.
Why do I need a Lasting Power of Attorney if a Deputyship Order can be made?
To avoid the need for the Court of Protection’s intervention in the event of losing mental capacity, individuals can plan in advance by setting up a Lasting Power of Attorney (LPA).
An LPA allows individuals to choose someone they trust to make decisions on their behalf if they are unable to do so in the future. By appointing an attorney through an LPA, individuals have control over who will make decisions and can ensure their best interests are protected.
What are the pros and cons of Lasting Powers of Attorney?
Having a Lasting Power of Attorney provides several benefits, including peace of mind knowing that decisions will be made by someone chosen by the individual. It also avoids the need for the Court of Protection’s involvement and streamlines the decision-making process.
LPAs have limitations, such as the need for mental capacity at the time of creation and the potential for abuse if the appointed attorney does not act in the individual’s best interests.
What is mental capacity and what are the implications?
Mental capacity refers to an individual’s ability to make sound decisions about their everyday life as well as important life-changing matters while understanding the implications of those decisions at the time.
According to the Mental Capacity Act 2005, a person lacks capacity if they are unable to make decisions for themselves “because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This means that if a person is unable to understand information, use it to reach a decision, or communicate their decision, they are considered to lack mental capacity.
There are various reasons why someone may lack mental capacity, including old age and dementia, extensive learning difficulties, serious illness, and personal injuries.
Serious injuries, especially those affecting the head or brain, can lead to a loss of mental capacity. In such cases, the Court of Protection may appoint a Deputy to make decisions on behalf of the individual during legal proceedings or following a compensation payout.
Do the Court of Protection assess Mental Capacity?
One of the primary functions of the Court of Protection is to determine whether an individual has the mental capacity to make specific decisions.
This assessment is crucial in establishing whether a person can make decisions independently or requires the assistance of a Deputy. The assessment is not solely based on a mental capacity assessment prepared by a health professional. Several factors are taken into consideration including the circumstances, finances and the types of decisions that are likely needed surrounding that particular individual.
The Court follows the guidelines set out in the Mental Capacity Act 2005 to assess an individual’s capacity and make decisions in their best interests.
What if someone has not made a Will but also lacks mental capacity?
Generally speaking, you need to have mental capacity to make a Will which documents how you want your estate distributed when you die.
If someone dies without a Will, usually their estate is distributed to relatives in an order of priority according to the Intestacy Rules.
In cases where an individual lacks the mental capacity to manage their finances and has not made a will, the Court of Protection can make a will on their behalf. This is known as a statutory will, which ensures that the individual’s best interests are considered. To ensure the proposed statutory will is appropriate, a draft is submitted to the Court for approval, taking into account the protected person’s circumstances and wishes.
What is meant by Deprivation of Liberty under the Mental Capacity Act 2005?
The Court of Protection has the authority to make decisions regarding the deprivation of liberty. If it is deemed necessary to deprive an individual of their liberty for their own safety or the safety of others, an application must be made to the Court of Protection. The Court carefully assesses the circumstances and determines whether the deprivation of liberty is in the best interests of the individual.
What happens if someone loses capacity following a serious injury?
In cases where an accident results in a person losing mental capacity and they wish to pursue a personal injury claim, the Court of Protection becomes involved.
The Court may appoint a Deputy to act on behalf of the injured person during the legal proceedings or after the compensation has been awarded. The Deputy becomes the point of contact for the personal injury solicitor and ensures that the compensation is managed appropriately in the best interests of the protected person.
What does a Deputy do where there are personal injury claims?
Deputies play a crucial role in compensation claims by ensuring that the protected person’s financial and welfare needs are met. They may assist in securing compensation on behalf of the protected person and make decisions regarding the use of the funds.
In cases where a protected person lacks the mental capacity to manage their finances, the Deputy may set up a personal injury trust to protect the compensation from being means-tested and accessed incorrectly.
What is a Personal Injury Trust?
If someone has been awarded compensation in excess of £6,000 as a result of a personal injury, and they are in receipt of means-tested benefits, the compensation award if paid directly to them, will result in the loss of means-tested benefits or care contributions.
A trust can also help people who may be old, young, vulnerable or simply unfamiliar with managing a large sum of money. The trust may not be necessary for everyone; however, everyone should always consider the advantages of having one alongside the implications of not using one.
If someone has lost their mental capacity following a serious injury and they are in receipt of means tested benefits, the personal injury trust can be used to hold damages while preserving eligibility for means-tested benefits and Local Authority Support capital.
How can I apply to become a Deputy?
If an individual requires assistance from the Court of Protection, various steps need to be followed to make an application. The application can be made online through the official government website or by contacting the Court of Protection directly.
It is important to provide all relevant information and supporting documents to support the application and ensure that the Court has a comprehensive understanding of the situation.
The application process can be quite complicated, and it is important to provide accurate information to the Court of Protection.
Does this have to be a permanent arrangement?
The Court of Protection offers both short-term and long-term assistance depending on the individual’s circumstances. Short-term help may involve appointing a Deputy for a limited period to make decisions on behalf of the protected person, such as managing their finances while they are unable to do so. Long-term help may involve appointing a Deputy for ongoing decision-making, covering financial and welfare matters, when the protected person lacks the mental capacity to make these decisions themselves.
Howell Jones Solicitors in Surrey
Understanding Court of Protection process and understanding the legal implications can be complex. It is essential to seek legal guidance and support from experienced professionals who specialise in Court of Protection matters.
At Howell Jones, we have an experienced, dedicated and award-winning Elderly and Vulnerable Client Team that specialises in all aspects of Court of Protection matters. We can provide personalised advice, assist with applications, and ensure compliance with the relevant laws and regulations. We will help address any concerns or disputes related to the decision-making process.
If you have any concerns about yourself or a loved one and would like to get some further advice about Lasting Powers of Attorney or a Deputyship Order, please contact Emma Sayers, Jon Creswick, Lavanya Hart or Hadiha Waheed in our award-winning Elderly and Vulnerable Client Team who will be delighted to help.
