Court of Protection and Deputyship

Your financial affairs do not have to be complex but if you lose capacity to make your own decisions and you have not already made a Lasting or Enduring Power of Attorney, then it may be necessary to apply to the Court of Protection for the appointment of a deputy.

We are recognised as experts in our field and we can guide you, and those closest to you, through the process of applying to Court. We will explain in clear and simple terms what is involved and how long it will all take.

We are regularly appointed by the Court of Protection to act as a professional deputy for individuals who lack capacity. When we take on this role we become responsible for the management of that person’s financial affairs and the range of decisions we have to make is very broad.

Our particular expertise lies in managing cases of the utmost complexity, involving significant awards of compensation following either personal injury or medical negligence or HNW families with complex asset structures; but the experience we have in these cases is transferable to any client, whatever your circumstances.

Disputes around the care of vulnerable loved ones and seeking to ensure that their best interests are protected can be challenging and distressing. Our team of expert lawyers in the field of Court of Protection disputes are well placed to assist you in navigating these difficult times.

We bring and defend applications in the Court of Protection including disputes over an appointment of a deputy or attorney, disputes around a vulnerable person’s mental capacity, challenging gifts made by a deputy or attorney, disagreements arising in relation to statutory wills, challenging personal welfare decisions and disputes arising in relation to whether the deputy or attorney is acting in the best interests of a vulnerable person.

Individuals will often approach us for advice in relation to dealing with their personal finances in the event they are unable to make decisions themselves in the future. This may be as a result of physical or mental incapacity and we have the expertise to advise as to what type of power of attorney is most suitable for you.

We also regularly advise where there may be a family dispute over the inappropriate use or abuse of authority under a power of attorney, such as where an attorney has used their authority inappropriately to make gifts which haven’t been authorised by the court.

We all understand the importance of making a Will and yet most adults in England and Wales have still not done so. What happens if you need to make a Will or change an existing Will but no longer have the testamentary capacity and understanding to do so?

The Court of Protection has powers under the Mental Capacity Act 2005 to authorise the making of a statutory will. This has the same effect as any other Will but is made with the authority of the Court following an application by an interested party. This could be a family member, beneficiary, attorney, deputy or any other person with an interest in the Will being made.

If you have received an award of compensation and you claim benefits, then you may wish to consider setting up a personal injury trust. Did you realise that the money you have received could result in your benefits being stopped, which may seem like adding insult to injury, but by obtaining the right advice and taking a few simple actions, this can be prevented.

If you are in receipt of certain means tested benefits, there will usually be a capital limit on how much you can have in savings before your benefits are affected. The Government’s new flagship benefit ‘Universal Credit’ has a lower capital limit of £6,000 and an upper limit of £16,000. Similar limits apply to Income Support, Jobseeker’s Allowance or Employment and Support Allowance but all these will be phased out when Universal Credit is introduced across the country.

As a result, you don’t have to receive a huge amount in compensation before your benefits may be affected. However, the inherent unfairness of suffering an injury that wasn’t your fault and then losing your benefits when you are compensated for that injury has long been acknowledged. Special rules are in place to allow a claimant to set up a simple trust and place their compensation within it. This capital (and any income generated by it within the trust) is protected from the means testing rules.

As either a deputy or attorney you will only usually have very limited powers to make gifts on behalf of the person you are acting for. This will typically mean you can make gifts on the usual occasions such as birthdays, Christmas or weddings, and the amount has to be in keeping with what that person would have done before they lost capacity. If we think about this it makes perfect sense – you are there to look after their money, not give it away.

Nonetheless, there may be occasions where it would be perfectly legitimate to consider making a much more substantial gift. This could be to support another family member, for example by assisting with expensive costs such as school fees, or as a way of tax efficient lifetime planning. If you are considering tax planning in the event of your death, then please read our section on statutory wills.

The purchase or sale of property is often the biggest financial decision most people make in their lifetime. The same applies to any individual who lacks capacity but there is then the added complication of ensuring the deputy has the necessary authority to proceed.

When a deputy is appointed, the Court Order clearly defines the extent of his or her authority. It is frequently the case that there is a restriction in that Order preventing the purchase or sale of property without the specific authority of the Court. We regularly make applications to obtain this authority.

At the same time it is essential that this authority is obtained as quickly as possible as otherwise you may run the risk of losing the property. We understand these time pressures and we work alongside our Real Estate team to manage the transaction to a successful conclusion.