Many people think that their spouse or another family member can automatically access their bank accounts and make decisions about their healthcare if there comes a time that they are unable to do so themselves.
This is not the case.
The only way of ensuring that the people you want will have the authority they need to make decisions relating to your property and finances and health and welfare is if you set up a Lasting Power of Attorney (LPA).
If you lose capacity without an LPA in place, your loved ones may have to apply to the Court of Protection to be appointed as your ‘Deputy’ to make decisions on your behalf.
In this blog, our experienced Court of Protection and Deputyship Solicitors answer some frequently asked questions about the Court of Protection.
What is the Court of Protection?
The Court of Protection is a specialist court that makes decisions or appoints other people (‘Deputies’) to make decisions on financial and welfare matters for individuals who lack the mental capacity to do so themselves.
It was established in 2007 under the Mental Capacity Act 2005 and is part of the Family Division of the High Court.
What is mental capacity?
Mental capacity is the ability to understand information and make decisions for yourself.
To have capacity a person must be able to:
- Understand the information that is relevant to the decision they want to make.
- Retain the information long enough to be able to make the decision.
- Weigh up the information available to make the decision.
- Communicate their decision by any possible means, including talking, using sign language, or through simple muscle movements such as blinking an eye or squeezing a hand.
Someone’s capacity to make a decision can vary depending on the time and nature of the decision that needs to be made.
If you cannot make decisions, you are said to ‘lack capacity’.
An individual may lack capacity for several reasons, for example, if they have a physical or mental illness, Alzheimer’s or dementia, a learning disability, a stroke, or they have suffered a brain injury following an accident.
People can lack capacity permanently or on a short-term basis (when your ability to make decisions changes day to day).
Whether a person lacks capacity also depends on the type of decision that needs to be made. For example, someone may have the capacity to know what they want to eat but lack the capacity to decide whether they should move into a care home.
What does the Court of Protection do?
The Court of Protection is responsible for:
- Deciding whether someone has the mental capacity to make a particular decision for themselves.
- Appointing deputies to make ongoing decisions for people who lack mental capacity.
- Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity.
- Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay.
- Making decisions about an LPA or Enduring Power of Attorney and considering any objections to their registration.
- Considering applications to make statutory wills or gifts.
- Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
Find out more about the Court of Protection by clicking here.
How do you apply to the Court of Protection?
If a loved one loses capacity without an LPA in place, you will need to make an application to the Court of Protection to act as their Deputy.
Applications can be time-consuming, complicated and confusing.
If you need to make a Deputyship application, we strongly advise seeking specialist legal advice from a solicitor with experience in the Court of Protection.
At Larcomes, our friendly and professional Deputyship lawyers have extensive experience helping people make applications to the Court of Protection and will guide you through the process involved.
If you need help looking after the interests of a vulnerable loved one, our experienced Court of Protection solicitors can help.
To speak to one of our Court of Protection lawyers in Portsmouth and Waterlooville, please call 023 9244 8100 or make an online enquiry.
What is a Deputy?
A Deputy is responsible for helping someone make decisions or making decisions on behalf of someone who lacks capacity.
Typically, a Deputy would be a family member or a close friend, although you can also choose to appoint a professional Deputy, such as a solicitor. The court can also appoint more than one Deputy who can make decisions jointly (together) or jointly and severally (together or independently).
Deputies are usually appointed to make decisions about a person’s property and financial affairs, which includes responsibilities such as paying bills, dealing with cash assets, such as bank and building society accounts, and managing or selling property.
Deputies must meet certain standards and any decisions they take must be in the other person’s best interests.
Court of Protection Solicitors Near Me
Our skilled Court of Protection and Deputyship solicitors in Portsmouth and Waterlooville can advise individuals and families on all legal issues relating to the Court of Protection and the law surrounding the Mental Capacity Act 2005.
Our specialist Deputyship solicitors offer sensitive and constructive legal advice on all matters to do with the Court of Protection, including:
- Assisting with the mental capacity assessment process.
- Deputyship applications to the Court of Protection.
- Acting as a professional Deputy.
- Advising and supporting Deputies in their role and responsibilities.
- Statutory Wills.
We will work for you and your family to find the right solution tailored to your situation.
To speak with one of our Court of Protection team please give us a call on 023 9244 8100 or make an online enquiry.
Please note that this article is not intended as legal or professional advice. It is for general guidance only, and updates to the law may have changed since it was published.
