It can be an extremely challenging time if a family member loses capacity, especially if you require authorisation from the Court of Protection to deal with matters on their behalf. However, our expert knowledge of the Mental Capacity Act 2005, the Civil Procedure Rules and our experience of Court of Protection applications enable us to deal with these matters as quickly and efficiently as possible.
Our expert team can assist with deputyship order applications, the management of affairs, obtaining authorisation of gifts made by Attorneys and many other Court of Protection matters.Contact us
The Court of Protection is a specialist Court which makes all decisions in accordance with the Mental Capacity Act. They are there to safeguard and oversee the actions which are taken in respect of individuals who lack the mental capacity to make those choices themselves.
When someone loses capacity, a Deputyship Order can be obtained through the Court of Protection authorising someone to make decisions on their behalf. There are two forms of Deputyship Orders being property and financial affairs, and health and welfare.
The Deputy needs to be someone over 18 and this would usually be a close family member or friend. However, it some cases it may be more appropriate for a Solicitor to be appointed and we can act in this capacity if there is no one else who can apply to be Deputy.
A Solicitor may make an initial assessment and if there are concerns that the person has lost capacity then a medical report would need to be obtained. A capacity assessment is required as part of the Deputyship Order application.
This is a common misconception – there is not an automatic right for a spouse of the person who has lost capacity to deal with their affairs. There may be elements which they are able to deal with, such as accessing joint bank accounts, but there is likely to be limitations to the decisions they can make on behalf of the person who has lost capacity.
Emergency applications can be made to the Court of Protection. However, they will only make the order if they are satisfied that it is a serious situation and there is immediate risk to the person.
The Court of Protection ensures that the decisions made are in the best interest of the person who has lost capacity. For example, an annual report must be completed by a Deputy to show all significant decisions which have been made on behalf of the person who has lost capacity.
Gifts can be made on behalf of the person who has lost capacity. However, there are rules in place in relation to gifts and an application may need to be made to the Court of Protection to authorise the gifts. We can advise when authorisation would be required and assist with the application.
The Court of Protection requires a Deputy to provide security when they are making an application for a Deputyship Order in relation to property and financial affairs. The bond is a form of safeguarding in relation to the assets of the person who has lost capacity. The bond will need to be renewed each year during the Deputy’s appointment.
The person applying to be Deputy can also request the authority to sell a property which the person who has lost capacity owns if it is held in their sole name. However, a further application would be needed to appoint the Deputy as a Trustee if the property is held jointly with another person.
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