The Court of Protection
This is a specialist Court which only deals with helping people who lack mental capacity to make their own decisions. The Court decides who should help the mentally incapacitated person make decisions for them with regards to their estate (money and property) or their health and welfare such as where they live, medical treatment or other health related matters.
If your relative has already lost capacity (the ability to make decisions that will have legal consequences for themselves) then we can assist you with making an application to the Court of Protection to have a Deputy appointed, to manage your relative’s property and affairs, where they have not completed a Lasting Power of Attorney.
The Court will appoint a Deputy, who can be a friend or a relative depending on the circumstances. It can also be a Solicitor. This is usually the option taken if there are any disputes or disagreements, or there are no family or friends who feel able to take on the role which can be very demanding depending on the complexity of the case. The Deputy can make decisions on behalf of the person who lacks mental capacity if they can’t make a decision for themselves, at the time it needs to be made. As a Deputy, you’ll be authorised by the Court of Protection to make decisions on their behalf.
Our experienced and dedicated team is led by Christopher Andrews, a specialist in this field and who acts for many people as both Deputy and Attorney. We can help and assist the incapacitated person or their family in all aspects of Court of Protection work. This can be an application to appoint a Deputy to help run someone’s finances, or to support the process if someone you know objects to a Deputy being appointed.
We work hard to make sure the correct Deputy is appointed and a Court Order is efficiently received, that clearly states the Deputy’s responsibilities and the decisions they are entitled to make. This can include property and financial affairs, such as paying bills and organising pensions, but also personal welfare, such as medical treatment decisions and how someone is looked after.
At John Fowlers Solicitors, we have extensive knowledge and experience in the following areas of Court of Protection matters:
- Making applications to appoint a Deputy for Property and Affairs and/or Health and Welfare
- Preparing annual reports and accounts
- Managing the day to day financial affairs of a patient as well as the long term investment of capital
- Acting for parties objecting to a Deputy application
- Making emergency orders to the Court of Protection to where the patient is in immediate risk
- Resolving issues where there matter of abuse of power by the Deputy or Attorney whether this be applying to the Court of Protection for the Attorney to disclaim their appointment or seeking to resolve the issues without the Courts intervention
- Application for Statutory Wills – In some cases, a will needs to be created for an individual who lacks the mental capacity to make one for themselves. An application would be made to The Court of Protection to approve a will on their behalf
- Challenges and objections to the creating of Lasting Power of Attorney should capacity be disputed
- Orders for approval of gifts by a Deputy
Every situation is different and at John Fowlers our experienced team will identifying the best way to move forward for each individual case. If you need advise and support with a Court of Protection issue, simply get in touch through our contact details.
When an individual has lost mental capacity to understand and manage their own affairs or there is a question over their capacity, there are times when a Will needs to be created for this individual. Importantly, where there appears to be a ‘gross injustice’ to the individual in question’s estate, their spouse, children or grandchildren.
The individual may have made a Will over 40 years ago and now their financial circumstances have increased dramatically and the previous Will does not provide for such or a dramatic change in family relations. It is essentially a Will under special circumstances.
A good solicitor will refuse to make a Will in any event should they have concerns over a clients mental capacity, they are professionally and legally obliged to obtain evidence concerning mental capacity and to confirm that the testator understands all the implications of what they are about to do.
If the client demonstrably does not understand the principles behind making a will and lacks the understanding required to be able to make a will on their own, an application can be made to the Court of Protection for what’s known as a Statutory Will to be drafted and approved on their behalf.
The application is simplified should the individual have an LPA or Deputy, so it is advisable that one of these are in place to make an application to the Court Of Protection.
Nevertheless, anyone who was a beneficiary under an existing Will is also entitled to make an application, however they will have the additional burden of having to prove the lack of mental capacity.
The application should include:
- All financial circumstances of the individual
- Arrangements currently made for their care
- Explanation of their family and nature of those relationships
- A draft of the proposed Will
The Court Of Protection can build a picture of those people who might expect to inherit something in the event of the individual’s death. An Official Solicitor will be appointed for the individual to form a completely independent perspective to the matter and any representations at Court
The Court will make the final and binding decision as to what the Will should include and the provisions for inheritance confirmed. All parties to the matter must abide by that decision. An order is to be made allowing the applicant to sign the Will on behalf of the person lacking capacity.
However, at the end of the day, it is the court that makes the final and binding decision as to what the will should say and what its provisions for inheritance should be and all parties must abide by that decision. The Will is now a legally valid and binding document.
In these statutory will matters, it is always important to involve a Solicitor to ensure it is correctly advised on and the application is accurately made. We are able to guide you throughout this process and provide all advice and assistance necessary.
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