Wills, Probate, Tax & Trusts : Court of Protection

Court of Protection

What Is The Court Of Protection? How Can It Help Me?

The Court of Protection was set up in October 2007 to safeguard the interests of people who lack the mental capacity to take decisions for themselves.

It has the power to:

  • decide whether or not someone lacks mental capacity
  • adjudicate on whether or not someone is being deprived of their liberty (such as being placed in a care home against their will)
  • appoint deputies – trusted individuals who take decisions on behalf of vulnerable people who lack the mental capacity to decide matters for themselves
  • rule in disputes over whether or not powers of attorney should be registered (and therefore take effect)
  • approve the execution of statutory wills (these are wills made on behalf of people who have lost the capacity to take decisions).

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Court of Protection Deputyships

If a person becomes mentally incapable of managing their own affairs – perhaps due to dementia or a serious brain injury – someone needs to take decisions on their behalf.

The person needing help may previously have chosen a close relative or friend to take decisions for them by setting up a power of attorney (which is cheaper and quicker than a deputyship application).

But if there is no power of attorney in place, a deputyship application must be made to the Court of Protection to appoint a representative (a deputy) to act on behalf of the person concerned.

Deputies are usually close relatives or trusted friends but they can also be professional advisers. Individuals can have more than one deputy. The court can appoint two or more in each case.

Usually, the application is to enable the deputy to take over the day-to-day running of the individual’s financial affairs but sometimes it concerns health and welfare decisions.

Who Can Become A Deputy? What Does It Involve?

Deputies must be aged 18 or over. There are two types: property and financial affairs deputies (who typically handle pension payments, pay bills) and personal welfare deputies (who make decisions about medical treatment and care).

Property and financial deputies must satisfy the court that they have the appropriate knowledge and skills needed to handle finances.

Personal welfare deputies must get Court of Protection permission to apply using a series of lengthy and complex forms. 

In both cases, our solicitors can help you to apply to the court.

Before taking any decisions on behalf of the person concerned, deputies must be certain they are acting in the best interests of the individual.

In each instance, deputies must consider the person’s mental capacity at that time. It may not always be the same from day to day. They may be more able to decide on some matters than others.

Also, property and financial deputies always must keep their own money and property separate from those of the person for whom they are taking decisions.

Ultimately, deputies have many complex duties and responsibilities but there are five main guiding principles under the Mental Health Act 2005:

  • A person must be assumed to have capacity unless it has been established that they lack capacity.
  • A person cannot be treated as incapable of taking a decision unless all practicable steps to help them have first been tried without success.
  • A person must not be deemed unable to take a decision simply because they have made unwise decisions.
  • Any act done or decision made on behalf of the person must always be in their best interests.
  • Before taking the decision on behalf of the person, is there any way of achieving this in a way that has less impact on their rights and freedoms?

What Is A Statutory Will? How Can It Help Me?

Sometimes a person who has lost mental capacity has not made a will. The government has set out rules about what will happen to the individual’s estate on their death. But these rules may not be what the individual would want – or what the circumstances require.

Here are some of the instances in which a statutory will can help:

  • the person lacking capacity has never made a will
  • their estate has increased in value (perhaps as a result of compensation following a brain injury) or reduced in value
  • their estate would benefit from tax planning
  • their existing will is out of date and their family circumstances have changed (perhaps a beneficiary has died).

In cases like this, you can apply to the Court of Protection for a statutory will to be made for the individual. 

Statutory wills are quite rare. Specialist legal advice is needed because these applications can be long and complex. We have a number of solicitors who specialise in Court of Protection work and have experience of statutory wills. Sometimes the process can involve us instructing a barrister on your behalf.

Often it is members of the individual’s family who ask for our help in applying to the Court of Protection for permission to draw up a statutory will – but sometimes it can be a representative from Social Services.

Also, the court will appoint an Official Solicitor (part of the Ministry of Justice) to speak on behalf of the individual who would be making the will if they had the mental capacity to do so.

In theory, the view of your solicitor applying for the statutory will should align closely with the opinions of the court-appointed Official Solicitor.

But sometimes opinions can differ. Our specialist solicitors can help to resolve any minor differences of legal opinion quickly and cost effectively.

The simplest way is for a solicitor named in a registered lasting power of attorney (LPA) to apply to the Court of Protection for a statutory will to be drafted and approved.

Challenging A Statutory Will

Statutory wills are rare so attempts to vary or challenge them are even rarer still.

It is possible to vary a statutory will but challenging them is difficult. For more advice on this – or on challenging any other type of will – contact Coles Miller Partner Simon Steele-Williams.

Get Expert Legal Help

Contact our solicitors for expert legal guidance on the Court of Protection and the responsibilities of being a deputy.

Problems with mobility? Don’t worry – we can come to you. Our solicitors would be more than happy to visit you at your home or in hospital.

Our team includes members of the Society of Trust and Estate Practitioners and Solicitors for the Elderly. We take the time to get to know you and your affairs so we can advise you how best to achieve your aims and ensure that your family and finances are properly looked after in the future.

Contact Coles Miller solicitors today for expert advice. Request a call back.

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