If you don’t have valid Power of Attorney documents in place and something happens to the mental capacity of you or your loved one, everything usually falls into the hands of the Court of Protection.
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If someone has lost mental capacity to take care of their property and financial affairs, an application to the Court of Protection may be necessary to appoint a Deputy to act in their best interests.
Generally, an application to appoint a Deputy will be required if:
- Someone is no longer capable of managing their own affairs;
- They have not made a Lasting Power of Attorney or Enduring Power of Attorney and are not mentally able to do so;
- They have money or property that needs to be looked after or used for their benefit
A medical assessment form would need to be completed by a doctor or other medical professional to accompany the application to the Court.
Various parties including the person who is alleged to lack mental capacity need to be served with a notice, informing them that the application is being made.
There may be other requirements as part of the process, and a Deputy bond usually has to be purchased before the Court releases the Deputyship Orders. There are also ongoing requirements, such as filing an annual report to the Office of the Public Guardian.
An application for Deputyship currently takes between four to six months and could be longer if there are complicated circumstances. Sometimes, additional Orders are required as well as or instead of a Deputyship Order.
It is also possible to apply to the Court of Protection for decisions to be made in respect of health and care decisions. Generally, a blanket appointment of ‘Deputy for Health and Care’ is not made except in the most difficult of circumstances. However, the Court can decide on issues such as residence, care and medical treatment.
‘P’ when applying to the Court of Protection, the term ‘P’ is referring to the person who lacks or is alleged to lack mental capacity.
‘Deputy’ refers to a person who is appointed by the Court of Protection to act on behalf of ‘P’ in relation to specific matters, which can include aspects of their property and affairs or their health and care.
Sometimes, the Court is asked to deal with other matters relating to a person who may lack mental capacity. These can include applications to replace or appoint a new trustee to deal with selling property or to manage a Will or property trust.
A Deputy who jointly (whether as joint tenants or tenants in common) owns property with ‘P’ will not have authority to sell that property without a new trustee being appointed to act on behalf of ‘P’.
If ‘P’ has not made a Will, or there are errors or problems within their Will, the Court can consider applications for a Statutory Will to be made. These can be complex matters and usually require evidence of ‘P’s testamentary intentions.
How we can help
Deputyship and other applications to the Court of Protection can be complicated, and we consider ‘P’s circumstances and needs before advising what applications need to be made.
We advise and assist throughout the application to ensure that the Applicant understands their duties and responsibilities, as well as their authority, as Deputy.
When someone lacks mental capacity to manage their affairs, problems can soon mount up. They may start to incur debts, or be unable to deal with their banking affairs, meaning that they cannot access cash to buy food or pay bills. If they need care at home or in a residential home, no one can arrange for payment to enable this to be paid.
It’s generally a slow process. It’s not unknown for cases to take ten months or longer to go through the Court of Protection. This is why it’s so important to put power of attorney in place.
The Court of Protection is a great safety net, but if you have all your affairs in order and valid LPAs in place, you should never need to use it.
That being said, if you are concerned about what to do in these circumstances, please do get in touch. We are here to help.
Take advantage of our complimentary initial consultation with one of our legal experts. To arrange yours call us on 0800 999 443.