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The Court of Protection is a specialist Court which deals with issues regarding people who lack the mental capacity to make decisions for themselves.
If a person can no longer make decisions for themselves regarding their property and financial affairs due to the loss of mental capacity, then an application can be made to the Court of Protection to appoint a "Deputy" who, following an Order from the Court will be able to make decisions on that person's behalf. By the time a person has lost mental capacity, it is unfortunately too late to put in place a Lasting Power of Attorney.
The Court of Protection Deputy is usually a family member or close friend. Sometimes, it is appropriate to have a professional Deputy in place, such as a solicitor or an accountant. Forbes Solicitors are happy to act as professional Deputies and currently act in this role for numerous clients.
Any Court of Protection Deputy must be over the age of eighteen.
As part of the application process, medical evidence will need to be obtained to support the fact that the person no longer has mental capacity to be able to make decisions themselves. The relevant forms are usually completed by the person's GP or a mental health professional who sometimes charge a fee.
It is also a requirement of the Court of Protection that certain family members are notified of the proceedings and given an opportunity to object if they wish. Any objections must be based on the list of potential legal objections prescribed by the Court.
Once the Court has considered and processed the application forms, and once an appropriate insurance bond has been put in place (in order to protect the person's assets from abuse), it will send out a formal Court Order legally appointing the Deputy and setting out their powers and duties. The Deputy must act in accordance with the Court Order and always act in the person's best interests. If a Deputy wishes to do anything that it is not set out within the Court Order, they must make a further application to the Court to obtain authority.
Court of Protection Deputies are legally responsible for dealing with the person's property and financial affairs and it is important that they keep accurate financial records as they will need to report to the Court every year as to how that person's financial affairs have been managed. For any complex financial situations, it is important that the Deputy seeks the relevant professional advice.
Some of the tasks that a Deputy might undertake are:
Making an application to the Court of Protection can be a lengthy and time consuming process. Our specialist team of Wills, Probate, Tax and Trusts Solicitors can help you through the application process from beginning to end, and if required act as Court of Protection Deputies.
22 Mar 2019
Wills, Probate, Tax & Trusts
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