How can vulnerable individuals be protected financially when getting married and is a pre-nuptial agreement the answer?
The Court of Protection exists to help people who are no longer capable of making some or all of their own decisions, usually by authorising the appointment of a deputy. Understanding how it all works can be overwhelming, so here are some of the most frequently asked questions we come across in relation to Court of Protection.
The Court of Protection makes decisions for you if you lack the mental capacity to make them for yourself, often by appointing a deputy and sometimes by making a one-off order. The Court can make decisions about your property and finances and about your health and welfare. However, the Court cannot make decisions on your behalf merely because you are ill or vulnerable – it can only do so if you ‘lack capacity’.
The Mental Capacity Act is an important piece of legislation designed to protect you if you lack mental capacity and to empower you to make your own decisions wherever possible. The Act deals with the Court of Protection, Deputies and Lasting Powers of Attorney. There is also a Code of Practice which professionals should follow when they are working with you.
The Mental Capacity Act explains exactly what ‘lack of capacity’ means. You will ‘lack capacity’ to make a decision if you are unable to make that decision for yourself because you have an impairment of the brain, for example Alzheimer’s or a brain injury. Capacity is task specific, which means that you may lack capacity to make certain decisions but still have capacity to make other decisions.
A deputy is a person appointed by the Court of Protection to make those decisions which you can’t make for yourself. The Court will usually appoint a family member but will sometimes appoint a solicitor. The deputy must always act in your ‘best interests’. Most deputies are property and affairs deputies. Very rarely, the Court will appoint a health and welfare deputy.
When making decisions on your behalf, the Court or the deputy must act in your ‘best interests’, which is explained in the Mental Capacity Act. This means helping you to take part in the decision-making as much as possible. It also means taking into account your wishes and beliefs and consulting with your family members, friends and carers.
Your deputy has a duty to always act in your best interests. They must make sure they keep your money separate from their own and not spend your money on themselves. If you have a large sum of money, your deputy should consider whether to invest it.
Your deputy can only make a decision on your behalf if you lack capacity to make it yourself. If you have capacity, then the decision is yours and the deputy cannot make it for you, even if he or she disagrees with you.
If you have a professional deputy, they will charge a fee for their services and this will be paid for from your money. However, your deputy cannot just pay themselves as much as they like. Every year, the deputy must send their bill to the Senior Court Costs Office, who will decide how much your deputy is allowed to charge.
Your deputy needs to report to the Office of the Public Guardian (OPG) every year about what they have spent your money on. The OPG will look at this report carefully and can ask questions or request further information. If you are concerned about how your deputy (or your attorney under a Lasting Power of Attorney) is behaving, you can ask the OPG to investigate. If there are serious concerns, then the OPG can make an application to the Court of Protection for your deputy to be removed.
You only need a deputy if you lack mental capacity. If your condition improves and you regain capacity, then the Court of Protection will make an order discharging your deputy so that you can make all decisions for yourself. If you are not getting on with your deputy, then you can ask the Court to remove them and appoint someone new. If the Court agrees that this is in your best interests, then a replacement deputy can be appointed.
The Office of the Public Guardian has a list of experienced professional deputies known as ‘panel deputies’. If you need a deputy and there are no family members willing and able to act, then the Court, as a last resort, may appoint a panel deputy to act for you.
The Office of the Public Guardian (the OPG) is part of the government and protects the interests of people who lack mental capacity on a more day-to-day basis than the Court of Protection. The OPG is responsible for supervising your deputy.
Usually, a Will is only valid if you have mental capacity when you make it. If you lack mental capacity, the Court of Protection can make a Will on your behalf called a statutory Will. The Court will gather evidence from your family members about your circumstances before agreeing to make a Statutory Will. The Court will usually ask the Official Solicitor to represent you and make sure your views are heard.
If you become involved in court proceedings but lack mental capacity, then the Official Solicitor can step in to represent you. This may be proceedings in the Court of Protection, such as an application for a statutory Will, or in civil or family matters in other courts.
If you have any further questions about the Court of Protection or deputyship, please contact or a , who will be happy to answer your questions.
The firm 'provides an excellent service to clients’, and specialises in property and affairs matters for clients who lack capacity due to catastrophic medical negligence or acquired brain injury."
Legal 500 UK, 2017
Kingsley Napley LLP’s team was bolstered in 2013 by Simon Hardy’s arrival from Irwin Mitchell, and is noted for high-value and sensitive deputyship matters."
Legal 500 UK
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