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A view of Loch Lomond, illustrating our simple guide to the Court of Protection

When someone suffers a brain injury, it can be a distressing time for all concerned.

After the initial shock has worn off, practical matters come into play, such as how you can access someone’s finances if their injuries are that severe that they are unable to themselves.

It’s not uncommon following a brain injury for someone to be deemed unable to manage their own affairs due to the impact of the brain injury, often referred to as the injured person lacking mental capacity.

A guide to some common Court of Protection terms:

Power of attorney

In these situations, if a power of attorney has previously been drawn up, the named individuals in that document would be able to make decisions on the injured person’s behalf in relation to their finances and assets and/or their care, depending on whether the power of attorney covers property and affairs or health and welfare.

Deputyship

If there is not a power of attorney in place, it is likely an application will need to be made to the Court of Protection to appoint deputies. The Court of Protection is a specialist Court which protects and supports vulnerable people who are unable to make decisions about their finances, property, and personal welfare.

The Court of Protection maintains a list of professional deputies who they will appoint to act for clients in situations where nobody close to the client is willing or able to act, but it is more common that a close family member will apply to be appointed.

Appointee

If the injured person’s only income is state benefits, and they have no property or savings, then it may not always be necessary to appoint a deputy. The Department of Work and Pensions can appoint an appointee to manage the benefits for a person who lacks mental capacity, and this is a fairly straightforward process.

Mental Capacity Act 2005

It is important that deputies act within the five statutory principles of the Mental Capacity Act 2005, which are:

  • The person must be assumed to have capacity unless it is established that he lacks capacity.
  • A person is not to be treated as unable to make a decision unless all practical steps to help him to do so are taken without success.
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  • An act done or decision made, under the Mental Capacity Act 2005, for or on behalf of a person who lacks capacity must be done or made in his best interests.
  • Before the act is done, or the decision is made, the deputy must consider whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

For more information about the Mental Capacity Act, read our article The 5 Key Principles of the Mental Capacity Act.

Accounts

The Office of the Public Guardian is responsible for supervising deputies and each year accounts must be submitted clearly setting out income and expenditure as well as all major decisions made on behalf of the injured person during the course of the year.

How Brain Injury Group can assist

If you need to apply for a deputyship for a loved one, our member firms are available to assist. Visit our Court of Protection panel to find details of our specialist member firms who can offer you an initial free, no obligation chat, about your options. Alternatively email enquiries@braininjurygroup.co.uk, call 0330 311 2541 or 0800 612 9660, or access live chat via our website, and we’ll arrange for a specialist solicitor to make contact.

Contact us – to get in touch you can either:

  1. Call us on 0800 612 9660 or 03303 112541
  2. Email us at enquiries@braininjurygroup.co.uk
  3. Complete this short enquiry form and we’ll get back to you
  4. Find a specialist brain injury solicitor near to you
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