Elderly and Vulnerable

Home Services Private Client Court of Protection and Deputyship Elderly and Vulnerable

There are a number of reasons why a person may lose the ability to look after one’s own affairs. Old age, and the related consequences to our health, is just one of them. Accidents, injuries and other medical conditions can occur at any age and have a devastating effect on the lives of the sufferer and those closest to them.

If you have a loved one who falls into either category, it can be a daunting and emotionally challenging time to help those who may no longer be able look after themselves.

You may need to take difficult decisions with little notice, and the legal issues can be complex, especially relating to their finances, care and health.

We work closely with families, friends, carers and the authorities to relieve as many of these pressures as possible and reduce the stress that you, and they, may be feeling. Whether we can put in place long term plans, or need to respond to short-term and sudden emergencies, our specialist private client lawyers can help you put the necessary financial and living arrangements in place.

Our services include:

Frequently asked questions:

What is mental capacity?

Mental capacity is the term used to describe a person’s ability to be able to understand and make decisions regarding a specific action or part of our lives. Mental capacity can fluctuate, meaning it can look and come across quite differently depending on the condition the person has. It is also possible to regain mental capacity after a period of time. This makes it a difficult area to navigate, especially when it relates to such personal aspect of our lives.

The Mental Capacity Act 2005 sets out the legal definition of mental capacity and the general principles that guide it. It also sets out the possible ways in which someone can prepare for a time when they may lack capacity and what can be done if someone hasn’t prepared and is now deemed to lack it.

How do I know if someone lacks mental capacity?

If you are concerned about a loved one and their ability to make decisions; for example, maybe they are struggling to remember to pay their bills or cannot recall their own assets, income and expenditure. Or maybe they are neglecting their health or forgetting to take vital medication. It may be worth seeking a professional opinion as to their mental capacity.

There are a number of professionals who can complete capacity assessments; including GP’s, qualified social workers and private capacity assessors, each differing in cost. The assessor will have specialists training as to the relevant questions to ask. At the end of an assessment, a report should be provided setting out the assessor’s conclusion. This can then be used to apply for a deputyship if required.

Capacity for a specific decision

Mental capacity is decision specific. This means that one assessment cannot be used to cover all decisions. For example, someone may lack capacity to manage their property and affairs but have the capacity to make a valid Will.

The threshold required to be deemed to have capacity differs depending on the specific decision at hand. Therefore, the tests for assessing mental capacity differs also. A qualified assessor will understand these differences and have the necessary tools to complete the assessment appropriately.

What is the difference between an LPA and a deputyship?

Essentially, in order to make a valid Lasting Power of Attorney (“LPA”), you will need to have the necessary capacity to make an LPA at the time. This is decision specific and so one may have the capacity to make an LPA but lack capacity to manage their property and affairs in general; so it is best to check with a professional first if you have any concerns for yourself or a loved one. If a solicitor is preparing an LPA on your behalf, consideration should be given to capacity and a note made before the LPA is signed – may take out if you think not necessary]. A fee is then required to register the LPA.

A deputyship is applied for when someone no longer has capacity to manage their affairs and lacks the capacity to make an LPA. A fee is charged to submit an application for consideration by the Court of Protection.

Once an LPA or deputyship is in place, the main difference is that a deputy will be required to submit an annual report, as well as apply for a deputyship bond (essentially and insurance policy) as well as make payment of an annual supervision fee to the Office of the Public Guardian. However, all fees can be funded from the estate of the person to whom the deputyship relates.

What’s the difference between a property and finances and health and welfare deputy?

The answer is in the title; a property and finances deputyship relates solely to matters regarding a person’s property; including houses, land and personal possessions (chattels) and finances. This will include all bank accounts, investments, trusts, tax, income and expenditure as well as potentially planning for the future such as the making of a Will.

A health and welfare deputyship relates to decisions regarding a person’s health; including medication, medical treatments and care arrangements, and welfare such as personal wellbeing and decisions regarding personal arrangements.

It should be noted that both types only cover the England and Wales; therefore, they do not give authority to act on any matters outside of this jurisdiction.

When might I need a deputyship for an elderly or vulnerable client?

This will depend on the type of deputyship you require. If you are finding it difficult to access funds or the necessary health care for a loved one then it may be time to consider an application to be appointed as deputy. See the Health and Welfare deputyship page for further information.

A few examples of when to seek a property and affairs deputyship have been included below:

Gaining access to bank accounts
Applying for and receiving benefits
Payment of care fees
Completion of Financial Assessments for care fees
Property relates matters including payment of utilities, applying for exemptions/remissions, insurance, sale and purchase of property
Dealing with investments
Tax related issues
Management of funds such as medical negligence settlements, large estates or inheritance
Succession planning; including estate planning, tax advise and the making of a Statutory Will or Codicil
Funeral plans

Who can apply to be a deputy?

Anyone over 18 can apply, though not anyone will be suitable.

Family or friends would be the most suitable choice as they will generally understand what is important to the protected party and what their wishes may be if they had capacity. Though not everyone will have relatives or friends who are available and willing to act. We are also sadly seeing an increase in cases where family and friends are not always acting in the best interests of the protected person. In this instance, social services may be willing to act. Though due to limited resources, this is not always a possibility.

A professional deputy may therefore be considered. Professional deputies can be instructed and appointed directly or a deputy can be requested from the panel. This is a group of independent professional solicitors based across the UK who are appointed by the Court. A panel deputy is available to provide independent services where there have been, for example, family disputes, financial abuse or where there is no one appropriate who can be a deputy.

In cases relating to health and welfare deputyships, as a general rule, the court will be reluctant to appoint a professional deputy, due to the extremely personal nature of the decisions being made. The most appropriate person to act in these instances would be a close relative; such as a parent, sibling or child.

What is the process for applying to be a deputy?

The application will need to be made to the Court of Protection. You will be able to find some useful guidance as well as contact details on the www.gov.uk website and search for courts and tribunals.

A number of forms will need to be completed. The forms are designed to provide the court with the relevant information they will require to consider the application. The forms required will depend on the type of deputyship you are applying for though they will both include the following:

Apply to make decisions on someone's behalf as a deputy
Supporting information for property and affairs applications
Supporting information for health and welfare applications
Assessment of capacity
Deputy's declaration

You may also wish to complete a witness statement to provide the court with any additional information you think will be required to consider your application; including the reasons as to why you are applying and why you are a suitable option.

Once the forms are complete, they will need to be submitted to the court along with an application fee of £371. There are additional fees if the case needs a hearing, which may occur if the application is objected to.

The timeframe in which your application will be considered can be anywhere from 1 month to over a year depending on the circumstances and whether your application is opposed. Once the court has considered the application, you may be asked to put a deputyship bond in place. This is essentially an insurance policy that can later be called in if there is any financial loss due to the deputy’s conduct.

Once the bond is in place and the court has agreed the Order, it will be sent to the issuing team who will send out the final sealed copies of the Order to you.