Court of Protection

Our specialists lawyers, Emma Costin and Ewan Lockhart act as professional deputies for vulnerable adults and children who are unable to make decisions about their property and affairs.

We know that each case is unique, and our client’s circumstances, needs and aspirations vary widely.

Please get in touch if you would like to discuss help with any aspect of financial deputyship.

Our Court of Protection Team can assist clients with:

• Making applications to the Court of Protection
• Advice and assistance on all aspects of financial deputyship including statutory funding, making gifts, making gratuitous care payments, statutory wills, best interest decision making and discharge and appointment of deputies
• Help with applications for statutory funding

If an adult or child under the age of 18 is expected to receive a large compensation award, the Court is likely to insist on the appointment a professional deputy to manage their financial affairs. This will usually be an experienced solicitor specialising in this area of law.

We offer help to lay deputies with all aspects of their role and responsibilities, this can include:

• Completing the annual report for a fixed fee
• One off applications to the Court of Protection

Personal injury trusts are recommended when a person has or is about to receive compensation following an accident or injury claim. If compensation funds are placed in a personal injury trust they can still be accessed via a bank account but will not count as capital for the purpose of means testing for certain state benefits and certain kinds of statutory funding. Even if the person is not currently receiving state benefit or statutory funding and has no expectation of doing so in the immediate future, a trust will provide shielding for as long as it is in existence and will mean that the funds in it remain protected.

We can draft personal injury trusts and advise and assist with the opening of a trust bank account. We can also act as professional trustee.

We are regularly instructed to

• Act as professional trustee alongside lay trustees
• Prepare annual accounts
• Deal with trust banking, investments, and payments
• Manage property including buying and selling property in the UK and abroad

Please get in touch if you would like to discuss help with a personal injury trust.

Many injured people are able make decisions about their property and finances but can find it hard to do this when they need to, especially if they suffer from chronic fatigue, pain, or memory problems. For this reason, it can be helpful to appoint a professional trustee.

Our Court of Protection team works closely with our specialist Wills, Trust and Probate Team who can assist clients with:

• Drafting LPAs
• Registering a Power of Attorney
• Applications by the donor to revoke an Enduring Power of Attorney
• Advance decisions and LPAs
• How to make an LPA
• Objection to the registration of an LPA

What is a Professional Deputy?

A deputy is appointed when someone lacks the mental capacity to make decisions about their property and financial affairs and also about their health and welfare. There are two different kinds of deputyship, financial affairs deputyship and health and welfare deputyship.

If someone has put a power of attorney in place and it has been registered with the Court, then they will not normally need a deputy.

A deputy can only be appointed by the Court of Protection. The Court will make an Order conferring certain powers on the deputy to make decisions on behalf of the person lacking capacity, for example decisions to buy and sell property and to make financial investments and gifts.

Deputies must always act in the best interest of the person lacking capacity and are bound by the rules of the Court of Protection and its Practice Directions, and by the Mental Capacity Act 2005 and its Code of Practice. Deputies are overseen by the Office of the Public Guardian.

What Is Mental Capacity?

Mental Capacity means being able to make and communicate your own decision when the decision needs to be made.

Sometimes adults lose the capacity to make decisions for themselves, such as following an accident or illness. Sometimes the condition is temporary and the person recovers, but sometimes it is permanent.

When this happens, if there is no Power of Attorney in place, a deputy may be needed.

Before a deputy can be appointed the vulnerable person will need to have a mental capacity assessment undertaken, which must be carried out in accordance with the test and principles laid out in the Mental Capacity Act 2005 and its Code of Practice.

Please click on the link to read the full Code of Practice:

https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

What is a Lay Deputy?

A lay deputy is a deputy who is not legally qualified. Usually a lay deputy will be a family member or trusted friend of the person who lacks capacity. All deputies are overseen by the Office of the Public Guardian.

What is a Panel Deputy?

A panel deputy is a professional deputy appointed by the Office of the Public Guardian. A panel deputy is usually appointed if there is no one else suitable to be the person’s deputy or if there is a dispute between family members.

I would like to be a Deputy along with a Professional Deputy, is this possible?

Yes this is possible. Sometimes it is in the best interest of the person lacking capacity for there to be two deputies and often this can be a family member along with a professional deputy.

What does a Deputy Do?

All deputies must act in the best interest of the person who lacks capacity.

Click on this link to view the Deputy Standards:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504356/SD5-Deputy-standards-professional-deputies.pdf

What does the Office of The Public Guardian do?

The Office of the Public Guardian (OPG) helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot do so for themselves. The OPG has the power to remove a deputy or attorney if they fail to meet the required standard.

Click on this link for more information:

https://www.gov.uk/government/organisations/office-of-the-public-guardian

Litigation has already started, is it too late to appoint a Deputy?

When it becomes apparent that a person who lacks capacity is likely to be awarded substantial compensation, it is usual for those advising the litigation friend to consider appointment of a professional deputy. Often this will be at the point when a significant interim payment is awarded and / or liability is admitted.

It is not uncommon for an injured party to lack the necessary mental capacity both to litigate and to manage their property and financial affairs, however these are different issues and require separate capacity assessments. Often a litigation friend will be appointed by the High Court to make decisions on behalf of the person in connection with the litigation, and a professional deputy will be appointed by the Court of Protection to manage their financial affairs.

What is The Court of Protection?

The Court of Protection is a specialist court which has the same powers as the High Court of Justice. The Court of Protection began operating in its current form on 1st October 2007. Its powers and scope are defined by the Mental Capacity Act 2005.

The Court of Protection has its own rules and specialist judges. If someone has the necessary mental capacity to make a particular decision, then the Court of Protection does not have jurisdiction to make that decision for them. Whether or not someone has the necessary mental capacity to make a particular decision is determined by the Court of Protection having regard to a capacity assessment.

Click on this link for more information about the Court of Protection:

https://www.gov.uk/courts-tribunals/court-of-protection

What is a Capacity Assessment?

A capacity assessment is an assessment carried out in accordance with the principles of the Mental Capacity Act 2005. A capacity assessment is usually carried out by a medically qualified person but not always. Before making any decision on behalf of a person, the Court will need to be satisfied that the person lacks the necessary mental capacity to make that decision themselves. The Court will do this by having regard to a capacity assessment.

What is a Statutory Will?

If an adult over the age of 18 does not have capacity to make a will and it is in their best interest to have one, then an application to the Court of Protection will be needed. The Court will approve the will and confer authority on the deputy to execute it. This is known as a statutory will.

What is the Official Solicitor’s Office?

The Official Solicitor and Public Trustee is a statutory office holder appointed by the Lord Chancellor.

Part of the role of the Official Solicitor is to act on behalf of adults or children who lack the capacity to represent themselves in court proceedings.

https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee/about

What will a Professional Deputy Cost?

The costs of a professional deputy are difficult to predict because the work that will need to be carried out varies from case to case and from year to year and sometimes unexpected events occur. Deputies usually charge based on the guideline hourly rates published on the government website.

Click on this link for more information:

https://www.gov.uk/guidance/solicitors-guideline-hourly-rates