Court of Protection
If you or your loved ones have been affected by a traumatic brain injury, if an elderly relative is suffering the onset of dementia, or a friend or family-member suffers from learning difficulties or mental illness, then the Court of Protection is there to help you.
Fentons Solicitors LLP can help guide you through the process of dealing with the Court of Protection. Our experts are on hand to provide all the necessary help and clear, practical advice you might need to deal with this very specialised area of law.
Our clients include people of all ages who are incapacitated because of injury, clinical negligence, mental illness or old age, including individuals with:
- Cerebral palsy
- Brain injury
- Learning difficulties
- Dementia
The need for a ‘deputy’
If someone is no longer capable of dealing with their own financial affairs or personal welfare, the Court of Protection will appoint a ‘deputy’. The deputy will have the power to make financial and, in some cases, welfare decisions for someone who does not have capacity to make those decisions themselves.
The deputy will need to work closely with case managers and other professionals to meet all of the client’s needs. The Court will authorise the deputy to act on a person’s behalf, granting them responsibility for property and affairs including:
- Maintaining a bank account
- Making investments
- Paying bills
- Claiming benefits
- Setting up a budget
- Purchasing and adapting property
- Purchasing specialist equipment
- Employing carers
- Appointing and liaising with case managers
- Filing tax returns
- Arranging holidays
- Accounting to the Court on an annual basis
In some cases the deputy may be appointed to make personal welfare decisions, which may include:
- Deciding where the person lives
- What contact the person has with specific persons
- Giving or refusing consent for medical treatment
- Giving consent for the transfer of healthcare
Dealing with the Court of Protection can be time consuming and complex. In many cases Fentons Solicitors act as a professional deputy to make things easier for our clients. We will often visit the client in their home and we always consult with their family and friends throughout. We do this to ensure that we are always acting in the best interests of our client.
Making a will
A person who does not have the capacity to deal with their financial affairs does not necessarily lack the capacity to make a will. We can help the clients to make a will for themselves. (Hyperlink to Wills & Probate section?)
If the client is unable to make their own will, we can make an application to the Court of Protection for a statutory will, which will take into account the wishes of the client wherever possible.
Court of Protection costs
The costs associated with the Court of Protection are broken down into two very distinct areas – costs charged by the Court of Protection itself, and the legal costs charged by the solicitors acting on your behalf. Our team of experts will take you through this process step by step to ensure you understand the way the costs are being charged and how they can be paid.
The Court of Protection makes its own charges for the application and will also charge annual administration fees. In addition, the deputy will be required to take out an annual security bond to insure their actions as deputy. All of these fees are recoverable from the mentally incapable person’s assets.
Legal costs
The Court of Protection sets fixed costs that can be claimed by solicitors. Fixed costs also apply for each year of general management where there is a professional deputy. In complex cases these costs are approved by the Court before payment is made from the client’s resources. However, in cases where the client has recovered compensation as a result of accident or clinical negligence, the cost of a professional deputy is often recovered as part of the claim.
Lasting Power of Attorney
A Lasting Power of Attorney is a document which allows you to give legal rights to a person of your choice to manage your financial affairs and make health and welfare decisions on your behalf, should you become incapable of making those decisions yourself.
Your family members are not automatically entitled to manage your financial affairs without your express authority. A Lasting Power of Attorneyallows you to appoint a person or persons (attorneys) to manage your affairs and personal welfare if you are permanently or temporarily unable to make decisions yourself.
There is an established process in drawing up a Lasting Power of Attorney, which must then be registered with the Office of the Public Guardian. Fentons Solicitors LLP can help you and your attorneys to complete the relevant forms and arrange for registration at the Office of the Public Guardian.
If you no longer have the necessary mental capacity to make your own Lasting Power of Attorney, an application to the Court of Protection will need to be made for the appointment of a deputy on your behalf.
How can Fentons help?
Fentons Court of Protection team can help guide you through the application process or, if you prefer, act as a professional deputy. If you would like further assistance contact Natasha Molloy on 0845 026 4749 or e-mail natasha.molloy@fentons.co.uk or complete the brief online enquiry form.
