Court of Protection and Mental Capacity
The Court of Protection and mental capacity team assist individuals (and their families) who lack the mental capacity to deal with their legal affairs.
The Court of Protection is a dedicated court dealing with vulnerable people who may lack the mental capacity to make decisions. In these instances the Court has the power to make decisions in relation to the property and affairs, healthcare and personal welfare of adults (and children in some cases) who lack mental capacity.
The Court also has the power to make declarations about whether someone has the capacity to make a particular decision.
Whether you wish to plan for the future by creating a Lasting Power of Attorney or alternatively a loved one lacks the mental capacity to deal with their affairs, then we can provide assistance. We believe that establishing close relationships with the individual and their family will ensure that the right decisions are made in every case.
Our team includes specialist lawyers who can assist with:
- Applications for the appointment of Deputies
- Acting as a Deputy and administering the affairs (both financial and welfare) of the person who lacks capacity
- The preparation and registration of Lasting Powers of Attorney
- The registration of Enduring Powers of Attorney
Welfare issues in the Court of Protection to include:
- Advising Attorneys and Deputies with regard to their powers and duties
- Application of mental capacity test to a transaction
- Contested applications to include applications for the removal of a Deputy of Attorney in cases of suspected fraud or abuse of power
- Statutory Wills (making a Will for someone who lacks capacity)
- Personal Injury Trusts
Advising Deputies and Attorneys
The main duty of a Deputy is to safeguard the individual’s assets and meet their day to day financial needs. The Deputy will work closely with the family and other professionals such as financial advisors and case managers.
The Deputy must always keep the Mental Capacity Act 2005 in mind when making decisions. A key principle of this Act is that the individual is presumed to have capacity unless proved otherwise and must be consulted in all decision making.
We can assist you with ensuring you comply with your duties and obligations as a Deputy or Attorney.
Our top tips include:
1. Attorneys/Deputies should keep the incapacitated person (P)’s monies separate from their own or anyone else’s. As well as being completely transparent, it does assist with completion of the Deputy Return.
2. Investments should be made in P’s name, with the Attorney/Deputy noted as a signatory. If for some reason it is not possible to be made in P’s name, the Attorney/Deputy should execute a Declaration of Trust or some formal record acknowledging beneficial interest in the assets.
3. You must make an application to the court if you wish to carry out any of the following:
3.1 Gifts that exceed the Authority given by the Order appointing you as a Deputy or for Attorneys the authority contained in section 12 of the Mental Capacity Act (MCA) – this basically covers small gifts on customary occasions and gifts to charities.
3.2 Loans to the Attorney/Deputy or to members of the Attorney/Deputy’s family.
3.3 Any investments in the Attorney’s/Deputy’s own business.
3.4 Sales or purchases at an undervalue.
3.5 Any other transactions in which there is a conflict between the interest of P and the Attorney/Deputy.
4. Be aware of the law regarding your role and responsibilities. Ignorance of the law is no excuse for misconduct. This involves awareness of the MCA and Code of Practice.
5. Be aware of the terms of your appointment and any restrictions. For example are there any restrictions in the Lasting Power of Attorney (LPA) or for Deputies in the Order appointing you. For example some Deputies will not be given authority to sell P’s property without further application to the court.
6. Take proper advice regarding investment of P’s assets. Have regard to the Trustee Act 2000 which sets out the standard investment criteria and the obligation to take and consider proper advice.
7. When taking advice regarding investments be clear about budgets for the short, medium and if necessary long term. Know what you are likely to need to spend and when. This is not an exact science but it is helpful to provide your advisor with a list of income and general expenditure to ensure that appropriate recommendations can be made.
8. Do check whether P was preparing Tax Returns and/or whether they will be required to now. Penalties will be payable in respect of late returns and late tax.
9. Do consider a Statutory Will for P especially if P’s Will is outdated or there is no Will in existence and the intestacy rules will bring about undesired results.
10. Remember that you are not entitled to see P’s current Will just by virtue of your role as Attorney/Deputy. You will need to make an application to the court for disclosure. It is sensible for deputies to include this in their initial application to become appointed.
11. Do try to encourage P to make decisions for themselves to the extent that they are able. Take into account that even if they cannot make big decisions about their property affairs they may be able to make some decisions. Remember that individuals are entitled to make what you may feel are bad or unwise decisions as long as they have the requisite capacity.
12. Remember that your authority as Attorney/Deputy generally does not give you authority over any of P’s Trustee functions. The law in this area is complex. It is possible to execute a Trustee Power of Attorney but this will end if P loses capacity. It is important to consider the Trust Deed carefully and an application to court may be necessary for P to be removed. This also includes any property where P is a joint owner. It is a good idea to take advice in respect of this.
Applications for the appointment of a Deputy
If a person lacks the mental capacity to understand and execute a Lasting Power of Attorney and has not signed any previous power of attorney, or if an existing power of attorney they have in place, is no longer valid it may be necessary for a Deputy to be appointed.
When is a Deputyship Application necessary?
A Deputyship Application can be in relation to Property and Financial Affairs or a person’s Health and Welfare.
The Court of Protection can make decisions and/or appoint a Deputy to make ongoing decisions in the best interests of those who lack capacity.
If appointed as a Deputy, you will be able to make decisions on behalf of the person who lacks mental capacity. Such decisions could be in respect of their property and finances or health and welfare, Such decisions must be made in accordance with the Mental Capacity Act 2005 and the Code of Practice and are restricted to the powers given in your Order from the Court.
Who can be a Deputy?
Anyone over the age of 18 can apply to the Court to become a Deputy. When applying you must declare any criminal convictions and/or bankruptcy arrangements and these may lead to the Court turning down your application. You must also declare any possible conflicts of interest (for example if you live in the house owned by the person who has lost mental capacity or you own assets together). Conflicts may lead the Court to turn down your application. Whilst we cannot guarantee the decision of the Judge making the Order, it is better if you let us know about anything you think may prejudice you application at the outset.
A Deputy may be a spouse, family member, friend or professional. The role of a Deputy can be onerous and should not be underestimated. You should only consider applying for the role if you can give the matter the time that it needs.
Recent Court decisions have indicated the Court of Protection’s reluctance to appoint anyone other than a professional deputy when there are large sums of money to deal with.
What Powers will I have as Deputy?
This depends. The circumstances of each case are different and it is important to let us know at the outset what you think you will need to have power to do.
Application to Court
This requires a series of forms to be completed with details of the person who lacks mental capacity and their finances and/or family and relationships. There will also be notified persons/respondents named in the application. This application is then submitted to Court.
At this stage, the Court needs to satisfy themselves that they have jurisdiction to deal with the application. The application must therefore be accompanied by a Mental Capacity certificate setting out the level of mental capacity the individual has to deal with their own affairs.
Persons to be notified, respondents and objections
When the application has been issued by the Court, it is then necessary to notifiy the person whom the application is about, that an application has been made. They then have the opportunity of objecting to the application.
In addition other people who are close to the individual that is the subject of the application should be notified. They also have the opportunity of becoming involved in the proceedings especially if they have concerns regarding the proposed deputy.
The Official Solicitor
If the Application becomes contentious due to objections raised by notified persons or respondents, then an Official Solicitor may be called to represent the person to whom the application relates. Objectors should also get their own legal representation.
The Court application fee is £400 and then a further £500 if a hearing is necessary. There are fee remissions available which may reduce the fees down to £0.
The general rule in property and affairs cases is that all parties legal costs, the Applicant and Respondents will come out of the funds of the Individual who lacks capacity, this also includes the Official Solicitor’s costs.
In health and welfare cases the general rule is that each party pays it’s own costs.
The Court can depart from either rule if it feels that a particular party has acted unreasonably or the circumstances dictate.
The timescale for an applicant will depend on whether the application is contentious, and if so, whether there is a need for a hearing. However, even in uncontested application, the timescale is approximately 24 weeks.
There is an emergency procedure and an interim directions Order can usually be issued within five or six weeks of submission of the original application.
Contested applications to the Court of Protection
The Court of Protection is a dedicated court that looks after those who have lost mental capacity.
As well as helping you with more routine applications in the Court of Protection, our team can assist with contested applications.
You may have been provided with notice that an Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA) is to be registered and you do not think that the proposed attorney is appropriate or you wish to have your say.
You may have been provided with notice of an application to the Court, either for a deputy to be appointed, a statutory will to be made, a gift application or an application of some other nature that you do not agree with.
Sadly there are occasions when individuals take advantage of the position they are in. An Attorney or Deputy may already be acting and you do not think they are acting in the person’s best interests. There are things that can be done to investigate their actions and if necessary ask the Court for that individual to be removed from the position.
It is important to take specialist advice before you respond with your objection.
The general rule of costs in is that all parties’ costs will be paid from the monies of the individual who lacks capacity. However the Judge does have power to depart from this if he believes you have acted unreasonably and can order that you pay not only your own costs but those of the other parties. We can advise you on how you should respond to application.
Please note the time limits for objecting to an application in the Court to registration are quite short and therefore to prepare the best possible case, it is wise to contact a specialist immediately.