Court Of Protection’s Christmas Countdown

The Court of Protection is a body brought about from the Mental Capacity Act 2005. It is the judicial body responsible for making financial and welfare decisions for those that cannot make them themselves due to mental incapacity.

They are responsible for:

• Deciding whether someone has the mental capacity to make a particular decision for themselves.
• Appointing Deputies both property and affairs and health and welfare.
• Giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity.
• Handling urgent or emergency applications
• Making decisions about a lasting power of attorney or enduring power of attorney
• Considering applications to make statutory wills or gifts.
• Considering deprivation of liberty requests in line with the Mental Capacity Act 2005

When we receive deputyship orders as a professional and panel deputy, we receive these orders from the court. Many of our decisions are subject to court approval and the court is responsible for issuing orders outlining our remit and responsibilities.

The Office of the Public Guardian (The OPG) work hand in hand with the court of the protection, essentially, the court make the decisions and the OPG ensure that the ongoing administration is managed.

Some of the roles that the OPG carry out are, the registration of lasting powers of attorney and enduring powers of attorney, the supervision of any court appointed deputies, additionally the OPG are able to investigate potential abuse of P’s finances, and any reports that the deputies or attorneys may be acting unethically or inefficient.

The OPG are able to assist when people would like to choose who they want to make decisions for them, by registering the Lasting Power of Attorney. For a Lasting Power of Attorney to be valid, this needs to be registered with the OPG. They help to carry out the legal functions of the Mental Capacity Act 2005.

Mental capacity refers to an individual’s ability to make decisions for themselves at a particular time. It is important that individuals retain as much autonomy as possible while receiving appropriate support when needed.

The Mental Capacity Act (2005) is key to understanding the meaning of Mental Capacity. According to the Act, someone may lack capacity if they cannot understand, retain, or evaluate relevant information or communicate their decision. Importantly, capacity is decision-specific, meaning a person might lack capacity for complex decisions (e.g., managing finances) but still be capable of making simpler ones (e.g., daily meal choices).

Mental capacity can be affected by conditions such as dementia, learning disabilities, brain injuries, or mental health disorders, and it can vary over time.

When someone is deemed to lack capacity, decisions must be made in their best interests, considering their past wishes, feelings, beliefs, and values. Wherever possible, they should be supported to participate in decisions, such as using simple language, visual aids, or involving trusted individuals.

A deputy is appointed by the Court of Protection to make decisions on behalf of someone who lacks the mental capacity to manage their own affairs. Deputies are typically appointed in situations where no Lasting Power of Attorney (LPA) exists, and decisions need to be made regarding the individual’s finances, property, or personal welfare.

There are two main types of deputies: property and financial affairs deputies and personal welfare deputies. The former manage tasks like paying bills, handling pensions, overseeing investments, and selling property, while the latter make decisions about healthcare, living arrangements, and personal care. We act as a professional deputy for lots of people but also support others with the application process to be appointed.

Trustee Applications within the Court of Protection will usually be to replace an incapacitated trustee. If It is deemed that a trustee no longer has capacity then they will not be able to make any decisions, and they would not be able to appoint a replacement for themselves.

This is where one of our Court of Protection experts can assist with the application to appoint a new trustee.

The most common trustee application is to appoint a replacement trustee to sell a property when a joint owner has lost capacity.

Benefits are payments from the government to certain people, that have lower incomes, or more specific needs. Benefits can be means-tested which means that your entitlement to them is dependent on how much income, savings, and any other capital. You can check what benefits you are entitled to using a benefits calendar.

Turn2us Benefits Calculator

We assist our clients with ensuring they receive all the benefits they are entitled to. We also assist deputies and attorneys in making sur they are claiming all correct benefits of someone who has lost capacity.

Managing the affairs of a loved one after they lose capacity comes with tremendous responsibility and the need to make best interest decisions on the behalf of another person.

Financial abuse and mismanaging of money by Deputies and Attorneys are becoming increasingly more common with people serving prison time for misappropriating funds.

In 2022 a son was jailed for two years and four months after misusing funds of over £70,000 with Judge Gledhill QC highlighting if the attorney abuses their power, the consequences are very serious.

If you are a Deputy or Attorney and are not sure what you should be doing, we can help! We offer fixed fee appointments where we can answer all your questions.

At Christmas time, Attorneys and Deputies often raise questions on gifting. As with anything on behalf of your loved ones, gifting should always be in their best interests.

Even though your loved ones lack capacity, they still need to be consulted and included as much as possible.

Gifts must be reasonable, affordable, and proportionate. When deciding whether to gift you should consider the relationship between the person and who the gift is for, and any previous gifts made.

If you are considering making a sizable gift or something out of the ordinary – additional authority may be needed from the Court of Protection. If you are unsure, we can help you make sure the decision is the right one and you have authority.

Occasionally, our clients have rental property, this may be before they lose capacity, as Attorney or Deputy, it is our duty to the ensure that the rental property is compliant. It is the duty of Deputies and Attorneys, to ensure that all insurance is up to date, conditions are sufficient, EPCs and gas safety certificates are in place and a tenancy agreement.

If you are an Attorney/Deputy managing a rental property, we can help to ensure all your duties are complied with.

An Occupational Pension is a workplace retirement scheme offered by employers to help employees save for retirement. Contributions are typically made by both the employer and employee, with funds invested to grow over time.

Once someone loses capacity to make their own financial decisions, a Deputy or Attorney are then responsible for monitoring any benefits and pensions available to them.

It is important you take appropriate advice to ensure it is managed in the person who has lost capacity best interests.

If someone has a sizeable estate and has not made a will, as Attorney or Deputy it is important to consider inheritance tax.

A statutory will can be made on behalf of somebody else if someone has lost capacity. This is done via the Court of Protection and can be a complex and emotive process with multiple steps, in order to ensure that your loved ones wishes and feelings are followed.

Alternatively, a codicil is another document that can amend an existing will and is used for making slight changes which avoids having to rewrite the entire will. The court of protection can make a statutory codicil, if more appropriate.

An enduring Power of Attorney comes from the Enduring Power of Attorney act 1985, whereas a Lasting Power of Attorney comes from the Mental Capacity Act 2005. The enduring power of attorney you can no longer make, and these are only valid documents if they were signed before 1^st October 2007. Additionally, an unregistered EPA can be used if the donor has capacity, whereas an LPA is not valid at all, until this has been registered.

They both take the same registration time, and the registration fee has not changed, this is £82.00. As the LPA has replaced the EPA, you can no longer make changes if you have an EPA and you would have to make an LPA, if you have capacity to do so.

When creating an EPA there were no safeguards imposed, whereas with an LPA, there is an independent certificate provider to certify that you have capacity to enter into an LPA, and are not under duress.

You could also only create an EPA for financial property and affairs, but for an LPA you can create on for financial property and affairs, and health and welfare.

Care Funding is such a broad topic with lots of avenues to explore. Care home fees or home care can be paid by you, The Local Authority, NHS, a third party or a combination of any of the above.

To be eligible for Local Authority funding your assets must be below £23,250.00, this includes any property, cash and investments. This can be assessed through financial assesment by your local council.

There are mandatory disregards that may be applicable if somebody else lives in your property, which may mean you are eligible for Local Authority funding before your assets reach £23,250.00

Other options for care funding include entering a deferred payment agreement, third party top ups or CHC funding.

If you need assistance or advice on any aspects or care funding, we are all the help you need.

A Third-party top-up is an additional payment made by a third party, e.g. a family member, friend, to cover the difference between the cost of a care home chosen for an individual and the amount that the local authority is willing to pay for care.

When someone moves into a care home and their costs are partially funded by the local authority, the authority typically has a limit on how much it will contribute. If the individual (or their family) chooses a care home that costs more than the authority’s standard rate, the care home may request the difference is paid by someone else.

The person paying the top-up must sign a written agreement with the LA or the care home confirming they will pay the additional fees.

It is important to note you do not have to enter into a third party top up agreement.

An Independent Financial Advisor (IFA) can provide tailored financial and investment advice, focusing on the individual’s needs and legal circumstances. This can include assessments of financial situations, investments and management of money for the long term. These can be extremely beneficial when someone has large sums of money. If a Deputy or Attorney is managing a large sum of money, they may appoint an IFA to ensure they are acting in the persons best interests.

It is important that Attorneys and Deputies are not mismanaging money and sometimes leaving it where it is not in that persons best interests.

Vicki Pearce is a partner and is Head of our Care Funding and Court of Protection Team. She was instrumental in setting up the specialist care funding and Court of Protection team in 2013 which has more than doubled in size since its inception.

James Batey

James is an Associate, experienced Court of Protection practitioner, and member of the Court of Protection team with over 25 years in a variety of roles in the Court of Protection.

Clare Edwards

A paralegal with over three years’ experience in the Court of Protection Team, working with vulnerable clients and their families. Clare brings over twenty years of experience working with benefits and income tax.

Gemma White

In May 2024, Gemma qualified into the Court of Protection team as a solicitor, with nearly 4 years’ experience overall in Court of Protection and care funding matters, she knew that this was the area of law for her.

Rachel Hayes

Rachel joined the firm in 2005 and has progressed to become a valued and integral part of the Court of Protection Team, she is an Associate Legal Practitioner and helps clients navigate the lengthy and complicated process of Court of Protection matters.

Vikki Hawkins

Vikki is a Paralegal in the Court of Protection Team and has long-standing experience in accounting responsibility and the management of operational budgets.

Krishna Trivedi

Krishna is a Paralegal in our Court of Protection team, having joined in December 2022.  Krishna is responsible for assisting in the daily management of files, and is the first port of call for clients, taking and dealing with enquiries from them, their families and care staff.

Taylor David

Taylor is a Legal and Finance Assistant in our Court of Protection team. She completed her master’s in law and social justice from University College London in 2023 and since has worked in the banking industry. Previously Taylor worked in the care setting and therefore, feels passionate about helping vulnerable clients.

Charlotte Davis

Charlotte is a Legal and Finance Assistant in our Court of Protection team, she has previous experience within the Residential Property Lettings sector, so she loves being around people and helping in any way that she can.

Amber Ferdous-White

Amber is a Legal and Finance Assistant in our Court of Protection team. She has a legal and security background, having just graduated with her law degree and has a passion for assisting in any way she can.

Pam Sweeney

Pam is our Legal secretary in the Court of Protection team. Pam assists every member of the team, helping with the admin of over 100 clients.

Our team wish you a very Merry Christmas.

Our offices will be closed from midday on the 24th of December 2024 and will reopen on the 2^nd of January 2025.

If you have any queries that arise over the Christmas period after spending time with loved ones, then please, contact us.

If you need any assistance or further information on anything covered in our COP Christmas Countdown, then please do not hesitate to get in touch.

Let’s cheer on our loved ones and assist them in ensuring they have all the help they need.

Merry Christmas.