When a loved one does not have mental capacity, as a result of an illness or accident, it can be an extremely daunting time for families. Who will manage their financial and property affairs, matters relating to their health and welfare, what is a deputy, is a statutory will required?
Within this section, we aim to assist you to navigate the Court of Protection minefield.
What is the Court of Protection?
The Court of Protection is a specialist Court which protects and supports vulnerable people who are unable to make decisions for themselves about their finances, property and personal welfare due to lack of mental capacity (see What is Mental ‘capacity’? below).
A person known as a Deputy is appointed by the Court, to effectively step in to the shoes of the person who lacks capacity, and make decisions for them. There are two types of deputy, professional and lay (explained in more detail under What is a Deputy/What are Deputies? below).
The Court of Protection maintains a list of approved Professional Deputies who they will appoint to act for clients in situations where nobody close to the client is willing or able to act.
Brain Injury Group has a number of member law firms who have representatives on this list of approved Professional Deputies.
What is Mental ‘capacity’?
Capacity is the ability (in law) to make a decision for yourself about a particular matter. To have capacity a person must be able to:
- understand the information given to them about a particular decision
- retain the information long enough to be able to make the decision
- weigh up the information available to make the decision
- communicate their decision, whether by speech, sign language, or simple movements eg. blinking
People are said to lack capacity when illness or injury prevents them from being able to make personal decisions, temporarily or permanently.
Capacity can change over time, and depending on the decision to be made. For example, a person may have capacity to make simple decisions such as what to eat, but not to deal with more complex matters such as financial affairs or health.
What is the Mental Capacity Act (2005)?
The Mental Capacity Act 2005 protects people who cannot make decisions for themselves for reasons such as having a learning disability, mental health problems, a brain injury, dementia, a stroke or their being unconscious due to anaesthetic or a sudden accident.
According to the Mental Capacity Act 2005, mental incapacity exists when ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of the mind, or brain’.
What is Lasting Power of Attorney?
A Lasting Power of Attorney is a document put in place whilst an individual has capacity, setting out who they would like to take control of their affairs, in the event they lose capacity in the future. There are two types:
- a Health and Welfare Power of Attorney which allows your nominees to make decisions about such things as your medical treatment or where you should live
- a Property and Financial Affairs Power of Attorney which allows your nominees to make decisions about your finances, including any property you may own.
A Lasting Power of Attorney can be set up by anyone over the age of 18 who has capacity to do so and will not come into effect unless the individual loses capacity at some stage in the future. Our Power of Attorney FAQs provides more information (opens in new tab).
What is a Deputy/What are Deputies?
If an individual loses capacity to manage their affairs and does not have in place a Lasting Power of Attorney, then an application will need to be made to the Court of Protection to appoint someone as the individual’s deputy.
You can ask the Court of Protection to appoint either a professional deputy – such as a solicitor – or a lay deputy. A lay deputy is generally a family member who is comfortable with taking important decisions and has the time to devote to this important role.
A professional deputy is more often chosen where someone has an acquired brain injury because of their expertise in dealing with such cases, especially if there is a claim for damages, which could be quite significant, leading to complex financial matters to be managed.
For more information on deputies, see our article Help! I’ve been asked to be a deputy and our fast fact sheet Appointing a Deputy (opens in new tab)
What is a Statutory Will?
Where a person lacks capacity to make a Will in their own right, a Will can be made on their behalf under the Mental Capacity Act. A Statutory Will has the same effect as if the Will had been made by someone who had capacity to execute the Will themselves but must be authorised by the Court of Protection for the Will to be valid.
For more information on Statutory Wills, read our article Making a will after suffering a brain injury.
How can Brain Injury Group help?
If you need advice, Brain Injury Group members can assist. Specialists in their field, they have the experience and knowledge to advise you.
Among our membership, we have a number of individuals who regularly act as professional deputies, to people with acquired brain injuries and manage their day to day financial affairs.
In addition, we can assist with:
- applications for those who wish to apply to be a deputy
- ad hoc advice for deputies to assist with annual returns or complying with other Court obligations
- acting in contested applications to the Court of Protection
- objecting to other applications that are being made
- ongoing Court of Protection matters
- best interests and deprivation of liberty
- Lasting Powers of Attorney
- Statutory Wills
Find a Court of Protection Specialist
Find a Court of Protection specialist
Find a Court of Protection specialist with the area of expertise you are interested in:
- Financial Deputyships
- Health and Welfare Deputyships
- Expert witness statements (costs)
- Local Authority care services and funding
- NHS Care funding
- SEN Applications and appeals
- Estate planning and trusts
- Completion of tax returns for deputy clients
Contact the Brain Injury Group
- Call us on 0800 612 9660 or 01737 852203
- Email us at [email protected]
- Complete this short enquiry form and we’ll get back to you
