COURT OF PROTECTION

To contact our specialist  team :-

At our Stafford Office - Tel 01785 252377

Jemma Blake - email Jemma        Sally Hatton - email Sally

At our Stoke on Trent office - Tel 01782 813315

Sarah Johnson - email Sarah        Carole Hill - email Carole

Court of Protection & the Office of the Public Guardian - when a person loses mental capacity the Court of Protection oversees that person’s affairs and ensures that their affairs continue to be managed appropriately.

Depending on the steps the person had taken before they lost mental capacity the Court of Protection may become involved in different ways.

Where a person has made an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) these will simply need to be registered with the Office of the Public Guardian when the Donor, the person who made the EPA or LPA, begins to lose capacity. In this case the Donor has expressed their wish as to who will deal with their affairs and the Court of Protection will allow the attorney to handle those affairs, largely without the intervention of the Court.

Where a person loses mental capacity and they have not made an EPA or an LPA then the Court of Protection must appoint someone to deal with that person’s affairs called a Deputy. Anyone can apply to be a Deputy but the Court will decide whether the applicant is a suitable Deputy and may appoint someone else instead.

The Court of Protection will oversee the actions of anyone who acts as an Attorney or Deputy in order to make sure they are acting in the best interests of the person who has lost capacity. The Court of Protection can also sanction certain acts on behalf of a person who has lost capacity, such as the making of a statutory Will or the gift of a large sum of money which a Deputy or Attorney is not permitted to make on their own.

Registration of Enduring Powers of Attorney and Lasting Powers of Attorney - if a person has an EPA and they begin to lose mental capacity this must be registered with the Office of the Public Guardian. An LPA should be registered as soon as it is to be used, even where the Donor has not lost capacity.

When registering an EPA or an LPA the Donor and certain relatives will need to be notified of the decision to register the document. This allows all parties a chance to object to the registration and ensures that the document is not registered against the Donor’s wishes whilst they still have capacity.

Once an EPA or LPA has been registered then the Attorney(s) can act on behalf of the Donor to the extent that the document provides.

Some EPA’s and LPA’s are very wide in their scope and allow the Attorney(s) to make whatever financial decisions the Donor could have made, whereas some Donors choose to restrict the power, for instance to provide that the Attorney may not sell the Donor’s house, or can only deal with certain bank accounts.

Where more than one Attorney has been appointed the document will also provide for how those Attorneys are to act i.e. jointly, where all attorneys must act together or severally, where each Attorney may make decisions and act on their own. Some Donors have further restrictions for example that two out of three attorneys must make all decisions, or all Attorneys must sign cheques over £1,000.

A Personal Welfare LPA will also give an Attorney certain rights relating to a Donor’s welfare, possibly including the right to make decisions regarding medical treatment, where the Donor should live and the care they should receive.

If you are an Attorney it is important to make sure that you are aware of the powers that you have. You should also keep records relating to the Donor’s affairs as the Court of Protection may wish to see these.

Nowell Meller can assist in registering EPA’s and LPA’s with the Court of Protection as and when the need arises. Nowell Meller can also offer help and guidance with other issues that may occur once acting as an Attorney under a registered EPA or LPA or where you feel that someone is abusing their power as an Attorney.

Appointment of a Deputy - where a person loses capacity and does not have an EPA or an LPA the Court of Protection must decide who should deal with that person’s affairs and will appoint someone to act as a ‘Deputy’.

An application to become a Deputy can be time consuming and expensive. Where a person still has the required mental capacity it is preferable to make an LPA. (N.B. As of October 2007 it is no longer possible to make a new EPA, although existing EPA’s are still valid and capable of being registered).

It may be possible to make an LPA even where a doctor has diagnosed early dementia or if there has been some other accident or illness which affects mental capacity; however the person providing the certificate of capacity must be satisfied that the Donor fully understands the LPA and its effect.

However, if the person’s mental capacity has already deteriorated to the extent that they could not understand the nature and scope of an LPA then a friend, relative, solicitor or other suitable professional would need to make an application to the Court of Protection to become their Deputy.

Anyone can apply to become a Deputy, but it is for the Court to decide, given all the circumstances, who should act as Deputy.

In situations where there are no close family or friends, or no-one who is willing or able to act as a Deputy then we are often appointed by the Court of Protection to deal with that person’s affairs.

We have extensive experience of acting as Deputy (previously called Receivers) for a range of clients all with differing needs.

As a Deputy there is a duty to keep accounts and to ensure, as far as possible, that the assets of the person who has lost capacity are invested suitably. The Court of Protection monitors anyone who acts as a Deputy and regular accounts are submitted to ensure that all of the affairs of the person who has lost capacity are being dealt with appropriately.

Our role as Deputy extends beyond financial responsibilities and we make regular visits to all of our Court of Protection clients to ensure that their needs are being met and to see if there are any practical measures that can be taken to improve their quality of life.

Our experience means that we are well placed to assist people at the difficult time when a loved one is losing their mental capacity. We can assist in completing any required paperwork and in explaining the role of Deputy. Where there is a family member or friend who wishes to take on that role we will support them throughout the Court of Protection process.

We are also able to act as Deputy where family members and friends do not feel able to act or where they would simply prefer to leave the role to someone with experience and expertise in these matters.

If you know someone who is losing mental capacity and would like to discuss the role of the Court of Protection and the options available to you then please contact the team to arrange a meeting

Statutory Wills  - even when acting as an Attorney or a Deputy there are still limits on what you may do with a person’s assets.

The Court of Protection has the authority to authorise many of these limited activities and one important area is Statutory Wills.

A Statutory Will is a Will that is made on behalf of someone who does not have the capacity to make a Will of their own. It is fundamental to the making of a Will that the person making it understands what a Will is, how it works, the value of any property in their estate and can rationalise who should be included or excluded as beneficiaries.

Where a person has lost mental capacity and has an Attorney or Deputy acting on their behalf they may still have the capacity to make a Will, called ‘testamentary capacity’, and a doctor would need to make this decision. The Court of Protection would then decide whether that person could make a Will of their own or not.

Where someone no longer has testamentary capacity the Deputy or Attorney must firstly decide whether that person needs to make a new Will.

It may be that the person never had a Will and that the Rules of Intestacy would not allow for the most appropriate distribution of their estate, or that they have a Will that is invalid or does not take into account changes in their circumstances. It may even be that a new Will would be beneficial as a way of saving Inheritance Tax.

Where the Attorney or Deputy thinks that the person who has lost capacity needs a new Will or to amend an existing Will then they must submit an application to the Court of Protection including the proposals for the new Will and the reasons why it is considered appropriate.

The Court of Protection may be able to consider the application on the basis of the documents provided or may require a hearing where all parties, including those who stand to lose out by the terms of the new Will, get their chance to explain why they think the proposed Will is, or is not, appropriate.

If you act as an Attorney or Deputy and are unsure as to the need for a Statutory Will we can discuss this with you and if you wish to go ahead with the Will we can make the application on your behalf, assisting you throughout the entire process.

Please do not hesitate to call or email our specialist team