How should a deputy manage a person’s investments?
Legal 500 2019
It is human nature to think “it will never happen to me”, but it is a sad fact of life that an increasing number of us will, at some point, lose capacity to make decisions about the management of either our property and financial affairs or personal welfare. This may be due to illness, old age or perhaps as the result of personal injury or medical negligence, and it often happens at the most inconvenient of times.
Our expert team of Court of Protection and deputyship lawyers can help you overcome the challenges these situations bring and provide forward planning, support and advice in situations where a person lacks capacity to make their own decisions.
We can assist you with the following services among others:
Working closely with other teams at Kingsley Napley, we can also draw on the experience of our medical negligence and personal injury, real estate, dispute resolution, family, corporate and commercial, employment, private client and litigation teams to assist you with a wider range of legal issues.
By planning ahead and making a Lasting Power of Attorney (LPA), you will have the comfort of knowing that your trusted attorney will be able to take on the responsibility of managing your finances. But what would happen if an LPA was not in place and you should lose capacity to manage your own affairs?
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 (who can be either a lay deputy, e.g. a family member, or a professional deputy). Our specialist and highly experienced Court of Protection team is here to help and support you at an often difficult and stressful time in your life.
If you are considering applying to be appointed as a deputy, we can advise you on the application and support you in that role. The process of making an application can be stressful, confusing and lengthy and we will help and guide you throughout. We also regularly act as a professional deputy in situations where there is no-one else suitable or where no family members wish to take on this demanding role.
We have particular expertise in advising on issues for property and financial affairs deputies, and our specialist experience in this field means that we will be able to help you, however difficult your situation may be. We are equally able to assist you with more complex matters such as the sale, purchase or adaptation of a property, applying for authority to make a gift or engaging in tax planning, or perhaps seeking authority to make a statutory will.
We also specialise in cases involving compensation awards and many of our clients come to us as a result of medical negligence, often from injuries caused at birth, or after suffering a serious personal injury. Involved from the early stages of a claim, we work alongside our highly rated clinical negligence and personal injury team in providing support and assistance to ensure you get the best possible outcome. As a result, we get to know our clients extremely well and we therefore have full understanding of their background and needs. We can assist in the litigation process by providing expert evidence in support of the claim for future deputyship costs.
When necessary we will work with our litigators bringing and defending applications in the Court of Protection including objecting to the appointment of a particular deputy; capacity disputes; challenging gifts; and disagreements arising in relation to statutory wills.
We also assist with civil action as a consequence of a rogue deputy or abuse associated with making a Lasting Power of Attorney, such as claims for undue influence or a breach of trust and/or fiduciary duty claim. These claims extend to making an application for an injunction in order to prevent the perpetrator from disposing of, or dealing, with misappropriated assets. Proceedings to recover misappropriated assets or for damages will be pursued in the Chancery Division of the High Court. The Court of Protection has no jurisdiction in relation to these matters.
While we have longstanding experience in supporting clients in respect of Court of Protection and deputyship, we don’t presume to know what you would want. This means listening to you, your family and your wider support team to understand what your needs and objectives are. If we are appointed as your deputy, we will work with you to enable you to make your own decisions whenever possible. We never forget that this is your life and your money and we fully respect your life choices.
We are a pragmatic team who live in the real world - we are happy to visit you at home and we will work closely with you to achieve the best outcome. We know life can be complex and difficult and we will do whatever we can to improve your situation. Rather than just tell you what the law is, we will provide clear and succinct advice and make recommendations so you can make informed decisions. Whatever we do, you can be confident that we will always act in your or your loved one’s best interests.
To provide you with a fully supported service, we work in close collaboration with your wider network of supporters and advisers, e.g. case managers, therapists, property agents, accountants, financial advisors, investment managers and educational lawyers.
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.
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Kingsley Napley LLP provides 'an excellent service to its vulnerable clients."
Legal 500 2019
Simon Hardy has a 'personal touch with clients, ... is very knowledgeable and has a real empathy with his clients."
Legal 500 2019
Anita Gill joined the team ... and is 'hugely experienced and a respected panel deputy and COP practitioner."
Legal 500 2018
Simon Hardy ... is adept at professional deputyship work as well as acting in the capacity of trustee in cases of personal injury or medical negligence. Impressed sources report: 'He's dedicated to his clients and really knows his stuff,' while clients say that he is 'everything that a Court of Protection solicitor should be'."
Chambers UK 2017
Kingsley Napley LLP’s ‘very professional team’ has a particular specialism in complex and high-value cerebral palsy cases. Simon Hardy is ‘very thorough’ ."
Legal 500 2016
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