The Court of Protection is a specialist Court that makes decisions for people who lack the mental capacity to manage their own affairs because of an illness, injury, or disability.
The Court of Protection makes decisions on financial, or welfare matters for people who cannot make decisions for themselves.
If the court appoints someone to manage the property and affairs of a person lacking capacity that person is known as a Deputy.
Lay Deputy Applications for property and financial affairs
If an individual lacks the capacity to make financial decisions for themselves and they do not have an appropriate power of attorney in place, then a Deputy can be appointed by the court to manage their affairs. A Lay deputy can be anyone over the age of 18 and is usually a family member or friend of the person who has lost capacity.
What does a Deputy do?
Acting as a Deputy is a position of responsibility and anyone acting as a Deputy must undertake to the court to follow certain procedures in accordance with the Mental Capacity Act 2005, including: –
- Making sure they always make decisions in the person’s best interest.
- Managing bank accounts.
- Paying bills and day-to-day expenses.
- Keeping strict records and receipts of the use of funds including preparing annual accounts for the court on the anniversary of the court order.
- Checking eligibility for benefits and applying for the same.
- Meeting with Court of Protection visitors for the purposes of reviews.
- Preparing tax returns.
The Deputy needs to be careful that they only make decisions they are authorised by the court to make.
It is usual for the costs associated with these applications to be paid from the funds of the incapacitated person.
If there is no family or friend available to act as the Deputy or no one with the necessary skill set to undertake the role then a professional Deputy can be appointed. Helen Robins has established an excellent reputation in taking on this role. Her expertise and sensitive approach can assist families at a particularly challenging time.
A professional Deputy is required to act in the best interest of the incapacitated person and consider the person’s past and present wishes, feelings, values, and beliefs. A professional Deputy will usually be paid for the initial application and then on an annual basis; however, there are strict rules about how much a professional Deputy can be paid.
Bespoke Applications to the Court of Protection
The Court of Protection can also make one-off decisions. Common examples of these include the following: –
Statutory Will Applications
A Statutory Will is a will made by the Court of Protection on behalf of a person who lacks the capacity to make it themselves.
Applying for a Statutory Will can be complicated and time consuming. The process involves completing an application to the court and may involve a hearing.
The Court of Protection is likely to involve the Official Solicitor who will represent the interests of the incapacitated person.
When the person passes away, their Statutory Will is treated in the same way as a regular Will.
Gifting or Tax Planning
A person appointed as an Attorney for someone who lacks capacity has limited authority to make gifts on behalf of that person; however, they do not have the power to make gifts on their behalf for tax planning purposes.
If they wish to make a gift or a series of gifts to reduce their estate for IHT Planning purposes, then these gifts need to be approved by the Court of Protection.
The consequences of not applying for the appropriate authority can be far reaching and can include being removed as the Attorney or that the tax benefits sought cannot be claimed as the gift could be deemed invalid.
If you need assistance with any of the above, we would be happy to welcome you to either our Liverpool or Southport office or if you would prefer, we can visit you at your home or your current place of residence we can also take initial instructions via a video call if appropriate.
Please contact Helen Robins at [email protected] or call 01704 617100 for a no-obligation discussion and for expert legal advice.