If someone becomes unable to make their own decisions due to a lack of mental capacity then someone else needs to make those decisions for them. If a Lasting Power of Attorney or Enduring Power of Attorney have been prepared in advance then it will appoint attorneys to act. If there is no Lasting Power of Attorney or Enduring Power of Attorney then an application will need to be made to the Court of Protection for a deputy to be appointed.
This process is time consuming and complex and often gives rise to a number of questions:
Mental capacity means being able to make successful decisions for yourself. This is subjective but a person lacking capacity would be unable to do one or more of the following:
This can happen for a variety of reasons. Perhaps the most common is where the person is suffering from a form of dementia but other common causes are a stroke or brain injury or a mental health problem.
A medical professional’s opinion will be persuasive evidence of lack of capacity but ultimately it is the Court of Protection that will decide.
The Court of Protection is the specialist court based in London which was created under the Mental Capacity Act 2005 for all issues relating to people who lack capacity to make specific decisions for themselves.
A twin body, the Office of The Public Guardian, deals with the administration arising from the decisions of the Court of Protection and the two names are often used interchangeably. For the purposes of this page the terms used will be Court of Protection or simply Court.
A deputy is a person appointed by the Court of Protection to make decisions on behalf of a person lacking capacity. The extent of the deputy’s decision making powers will be determined by the Court.
Every individual has the right to appoint an attorney in advance, to look after their affairs should they later lack the capacity to do so themselves. This is achieved by making a Lasting Power of Attorney (or previously an Enduring Power of Attorney). If someone loses their capacity to make decisions and there is no Lasting Power of Attorney or Enduring Power of Attorney then an application to the Court of Protection must be made seeking appointment of a deputy to act in the same way as an attorney would for that individual.
There are two types of deputy (although one person could be appointed to both roles):
Because of the financial risks involved, no decisions or actions can be made by a property and affairs deputy until a ‘security bond’ – a type of insurance – has been paid.
It should be remembered that all actions should be in the person’s best interest and that the deputy will be supervised by the court. Supervision may involve any or all of the following:
In addition, the Court may ask a deputy to provide specific information about a decision they have made or to provide supporting documents about a financial transaction. The Court may also contact social services or health authorities to request copies of the health and social care records of the person lacking capacity or request copies of care records from registered care homes.
Anyone over the aged 18 or over can apply to be a deputy. However, deputies are usually close relatives or friends of the person who needs help making decisions. Deputies must be suitable so property and affairs deputies will need to show that they have the skills to make financial decisions for someone else and ideally they should not have been declared bankrupt or have a criminal record (although this is not automatically fatal to an application). If no close relatives or friends are willing to put themselves forward as a deputy a professional, such as a solicitor or accountant, can be appointed, although they will charge.
Before considering applying for appointment of a deputy it must be established whether a Lasting Power of Attorney or an Enduring Power of Attorney exist. If they do an attorney should be appointed.
If not then the first step is to obtain medical evidence that the person lacks capacity to act on their own behalf. The Court will not accept jurisdiction without medical evidence submitted using its standard form – COP, which is completed by the medical practitioner. It may be the case that the medical practitioner will assess that whilst the person lacks capacity to deal with their affairs they still have the required level of capacity to make a Lasting Power of Attorney. If this is the case then that is the route that must be followed.
Several other forms giving details about the type of order being asked for (property and affairs and/or health and welfare), details about the person applying to be appointed as deputy and details about the person who lacks capacity must then be completed. The whole is then sent to the Court of Protection.
Once the forms have been submitted the court usually take 2 or 3 months to process them and for a deputy to be appointed. The overall time can be considerably longer depending on how quickly the medical evidence can be gathered.
Yes, these are detailed below. They are payable from the assets of the person who lacks capacity, although those marked * will need to be paid for in advance and recouped once the appointment has been made.
If you are looking for a court of protection solicitor in Plymouth, Plympton, Plymstock and the surrounding area, choose the Plymouth power of attorney solicitors, Gard & Co. Solicitors.