If you feel that a loved one is no longer able to make decisions for themselves about their finances or their personal welfare it may be necessary to turn to the Court of Protection for help.
The Court of Protection is a specialist court which makes decisions on financial or welfare issues for people who ‘lack mental capacity’.
An individual could lose mental capacity in a number of ways, such as Alzheimer’s, dementia, a stroke, a brain injury, severe post traumatic stress disorders or they may have severe learning disabilities.
Karen Woodbridge, Chartered Legal Executive at WBW Solicitors in Newton Abbot, outlines the role of the Court of Protection and explains how a solicitor could help if you think you need to make an application.
Assessing mental capacity
One of the Court of Protection’s jobs is to decide whether someone lacks capacity. The process usually involves a solicitor making an application to the court and presenting evidence from a medical expert that a person lacks capacity. The court will make a decision based on all the evidence presented to it.
Someone’s level of capacity must be considered every time a decision is made for them. So, for example, they may lack capacity to make decisions about their finances, but still be capable of making decisions about where to live.
Making decisions on behalf of vulnerable people
The Court of Protection will deal with urgent or emergency applications where a decision must be made on behalf of someone else without delay, or can give people permission to make one-off decisions on behalf of someone else who lacks mental capacity.
If someone who lacks mental capacity needs decisions made for them on an ongoing basis, the court also has the power to appoint one or more deputies to carry out this role. Most deputies are property and affairs deputies and are charged with making financial decisions on behalf of someone lacking mental capacity. The Court of Protection may, however, appoint a personal welfare deputy, if the person lacking mental capacity is at risk of abuse or there has been a history of disputes within the family in relation to care.
Ruling on lasting powers of attorney
The Court of Protection can make decisions about lasting powers of attorney – a legal document which lets you appoint someone you trust to run your affairs if you lose mental capacity and are no longer able to make decisions for yourself. The court can rule on the validity of a lasting power of attorney and consider any objections to its registration.
Deprivation of liberty and other powers of the Court of Protection
Other applications that the Court of Protection is empowered to consider include those involving statutory wills, or gifts, and deciding if someone can be deprived of their liberty under the Mental Capacity Act.
How a solicitor can help
If you feel you need to make an application to the Court of Protection – whether this is because you suspect a loved one has lost mental capacity or because you want a decision made over a lasting power of attorney, a gift or a statutory will, you should talk to a specialist private client solicitor first.
They will be able to talk you through your options, make sure that all the relevant paperwork is in order and guide you through the whole court process, making representations on your behalf and ensuring that your interests and those of your loved ones are protected.