Everyone has the right to choose their own path in life. But when someone cannot make their own decisions, for example, due to dementia or a serious brain injury, they need support and care. This may include making decisions for them in their best interests.
We understand that it can be incredibly upsetting when someone you love and care about loses their mental capacity. It can also be very frustrating. If they did not leave a Lasting Power of Attorney appointing you to manage their finances and/or health, it can be difficult for you to provide the support they need. For example, you probably will not be able to access their bank accounts nor pay their bills.
If this is your situation, an application to the government department known as the Court of Protection can help.
The Court of Protection was created to help and protect people who lack mental capacity. If you think that someone close to you cannot make their own decisions about things like their financial matters, their medical care or day-to-day routine, you can apply to the Court of Protection for a wide range of decisions.
Our Court of Protection solicitors can provide all the advice you need about supporting your loved one, including obtaining a Deputyship Order to appoint you as their deputy, giving you the power to manage your loved one’s affairs on their behalf.
We can visit you and your loved one in your home, care home or hospital within a reasonable distance of one of our offices if you cannot come to our offices yourself.
How our Court of Protection solicitors can help you
Court of Protection applications are very complex, often requiring extensive financial information, medical reports and mental capacity assessments. So, having legal advice is essential.
Our Court of Protection solicitors are experts in this area. We can explain the law, the complex application process and your options in plain, understandable English. We will always put the best interests of your loved one first and will treat your case with the utmost care and sensitivity.
Our Court of Protection services include:
- Advice about mental capacity
- Court of Protection deputyship applications
- Advice for Court of Protection deputies
- Statutory Wills advice
- Selling property
- One-off decisions
- Urgent and emergency applications
- Deprivation of liberty
- Protecting older and vulnerable people from abuse
- General older and vulnerable person care advice
Advice about mental capacity
In England and Wales, the law allows people to make their own decisions about their own lives as far as possible. So, the Court of Protection can only give someone else the authorisation to handle a person’s finances and/or health if that person lacks mental capacity.
A person is always presumed to have mental capacity. When applying for a Deputyship Order, a Statutory Will, or any other order or decision, it is essential to carry out a mental capacity assessment.
Even once a Deputyship Order has been made, deputies should be aware that mental capacity can fluctuate and should be considered for each separate decision. For example, a person may be able to make a decision about their day-to-day routine, but may not be able to manage their bank accounts.
Our Court of Protection solicitors can provide clear, practical advice about mental capacity assessments, including liaising with medical professionals to obtain reports on mental capacity and assisting with Court of Protection applications.
Court of Protection deputyship applications
There are two types of Court of Protection deputy:
- Property and financial affairs deputy – manages financial matters, such as paying bills.
- Health and welfare deputy – manages a person’s routine, care and healthcare.
You can become either or both types of deputy, depending on what kind of support your loved one needs.
Deputyship applications are very complex, requiring several different forms, a mental capacity assessment and detailed financial information (for property and financial affairs deputyship applications).
We can assist with all these matters sensitively, as we appreciate these situations can be very stressful.
Advice for Court of Protection deputies
Deputies have many responsibilities to fulfil, which can be daunting, especially if you’ve never done it before. We can provide guidance every step of the way, reducing the stress for you and ensuring your loved one’s best interests come first at all times. Our service includes:
- Helping with mental capacity assessments.
- Helping you make decisions on behalf of someone else.
- Supporting you as you help someone make a particular decision.
- Guiding you through deputy administration matters, such as keeping records, preparing accounts and reports and claiming expenses.
Statutory Wills advice
When someone lacks mental capacity, they may not be able to make or change their Will. This could potentially cause a lot of heartache for their family and may mean their estate is not as tax-efficient as it could be.
The Court of Protection can make or change a Will on a person’s behalf – this is called a Statutory Will. We can assist with making an application to make a Statutory Will or change a person’s existing Will.
You need sufficient mental capacity to be able to consent to the sale of property. So, it can become very difficult when a home needs to be sold, for example, to pay for a person’s care. The situation is even more challenging if the home is jointly owned when the co-owner cannot sell without the consent of the incapacitated person.
We can assist with applications to the Court of Protection to sell property and appoint people to consent to the sale of jointly owned property.
Deputies and attorneys can only make decisions within the scope of the Deputyship Order or Power of Attorney. Where a decision falls outside the legal authorisation, or where deputies/attorneys disagree about a decision, you can apply to the Court of Protection to approve a one-off decision.
Our Court of Protection lawyers can guide you through the application process, making it as simple and straightforward as possible.
Urgent and emergency applications
The Court of Protection can make urgent and emergency decisions, for example:
- Where someone needs urgent medical attention and the doctors need consent to treat them.
- Where you need to make an immediate decision, such as paying care home fees, but your Deputyship Order has not yet been approved.
If you need to make an urgent or emergency application, contact us as soon as possible, and we can provide immediate advice.
Deprivation of liberty
Everyone has a human right to liberty, but sometimes it may be in a person’s best interests to have their movements and activities controlled, for example, to protect them from physical harm.
If a medical professional, hospital or care home wants to deprive someone of their liberty, they must obtain deprivation of liberty authorisation and comply with the Deprivation of Liberty Safeguards (DoLS).
If you are concerned that someone’s liberty has been deprived inappropriately, for example, because it is not in their best interests or because they actually have mental capacity, we are here to help. We can support you in an application to the Court of Protection to challenge an authorisation.
We also provide advice to hospitals, care home professionals and healthcare professionals about deprivation of liberty.
Protecting older and vulnerable people from abuse
If you are worried that a loved one or someone you know is being abused or exploited, or is at risk of abuse or exploitation, contact us for advice.
We can explain your options and help you take action, including making applications to remove attorneys and deputies, ending Deputyship Orders and making urgent or emergency applications.
General older and vulnerable person care advice
Our legal specialists can provide a wide range of advice in relation to other legal issues which commonly affect older and vulnerable people, including:
- General advice about care and care plans.
- Powers of Attorney advice
- Making a Will
- Inheritance Tax planning
- Probate and estate administration
- Inheritance disputes