29 June 2018
Court of Protection – What do we do?
How many of you have heard of the Court of Protection? Who knows what it is?
The Court of Protection is a specialist court which is responsible for individuals who lack the mental capacity to manage their own property and affairs or to make decisions about their welfare.
The Court of Protection is very important as it exists to safeguard vulnerable people who lack the mental capacity to make decisions themselves. It makes decisions on financial or welfare matters for those individuals who can’t make decisions at the time they need to be made. At Slater and Gordon, we have a team of experts who have many years’ experience in Court of Protection law who are dedicated to safeguarding the financial and property affairs of those suffering from a lack of mental capacity.
But what is mental capacity? Why would an adult be unable to make decisions for themselves?
Mental capacity means being able to make your own decisions. There are many reasons why an individual may lack capacity. It could be because of learning disabilities, dementia or as a result of a brain injury among other things.
What kind of decisions would you make for them?
The Mental Capacity Act gives the Court of Protection jurisdiction to make orders about personal welfare, as well as property and finances for those who lack the mental capacity to make decisions for themselves.
The matters we make decisions about are very wide-ranging and include among other things:
- Preserving access to the relevant state benefits and ensuring they are claimed appropriately.
- Arranging payments, which may include care costs, on an ongoing basis
- Employing a care team and dealing with employment law issues to meet client needs
- Buying/adapting a house
- Managing tax affairs and preparing accounts
- Working with other professional advisors, to ensure a coordinated approach to the clients financial affairs and the protection and growth of their funds
- Considering wills and gifts
- Supporting and advising
Why can’t a family member make these important decisions for their loved ones?
When someone lacks the mental capacity to look after their own affairs and has not put in place a Power of Attorney before losing capacity, the Court of Protection will appoint a Deputy to look after a person's affairs. The Deputy must act in the persons’ best interests and follow the rules of the Mental Capacity Act.
So yes, a family member can become a Deputy which is known as a Lay Deputy, and manage the vulnerable persons' affairs. However, they will have to adhere to the court’s strict guidelines and file an annual report each year to the office and Public of Guardian (a government department which protects people who may not have the mental capacity to make certain decisions for themselves) explaining the decisions you have made. This can be an enormous responsibility and extremely daunting if you have no experience of acting on behalf of someone else.
This is where we can step in and as Court of Protection solicitors. We can advise a person on how to manage someone else’s affairs, money and property responsibility in their best interests. Or we can take the burden off their shoulders altogether and do it ourselves.
What is a Deputy and what is a Power of Attorney?
A Deputy is a person who is appointed to undertake the duties of a superior (simply a superior figure) in the superior’s absence. Power of Attorney is somebody who has the authority to act for another person in specified or all legal matters.
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