Court of Protection
The role of the Court of Protection is to make decisions on behalf of those who do not have the capacity to make decisions themselves.
An individual can choose to appoint the people they trust to make decisions for them if they lose mental capacity by creating Lasting Powers of Attorney (LPAs).
However, there are actions that Attorneys appointed under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA)) cannot take without prior authority from the Court of Protection.
We can assist you if you need to make applications to the Court of Protection. The following are the most common applications:
If your relative or friend has lost mental capacity but does not have a LPA for property and financial affairs or an EPA, you can apply to the Court of Protection for a Deputyship Order to give you the authority to manage that person’s finances as their Deputy.
We can assist you with the documents needed for a Deputyship application and ensure that you apply for any specific powers that you will need in the circumstances. We also advise you on the Court’s rules and requirements throughout the process so that the application can be processed by the Court as swiftly as possible.
We can also advise you about acting as a Deputy once the Order has been issued, and assist you with any further applications that may need to be made to the Court about your relative or friend.
Jointly owned property
When two or more people own a property together, they are all trustees of the interest in that property. If the property needs to be sold and one of the trustees has lost capacity without having an LPA or EPA, the incapable trustee will not be able to sign any legally binding documents to sell the property. An application to the Court of Protection can be made for an Order to appoint someone to take the place of the incapable trustee so that the sale can proceed.
The ability to make gifts on behalf of an incapable person are limited, both for a Deputy and an Attorney, and the definition of what counts as a gift goes beyond simply the giving of funds to someone else. A gift can include any transaction where the incapable person has benefited someone else to their own detriment - for example, paying someone else’s school fees, giving someone an interest-free loan or allowing someone to live rent-free in a property belonging to the incapable person.
There may be situations where an Attorney or Deputy wishes to make a gift from the incapable person which is beyond the level of gifts they have power to give. This requires an application for authority from the Court of Protection to make the gift on the person’s behalf.
An individual who does not have mental capacity cannot make a valid Will themselves. However, an application can be made to the Court of Protection who has powers to make a legally effective Will for them, known as a Statutory Will.
Often, these types of application to the Court of Protection are uncontroversial, but we can also advise you if there are any disagreements or disputes that arise during the Court proceedings.
If you would like to speak to someone at TWM Solicitors about Court of Protection applications, please contact a member of our Private Client team.
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Ms A, Private Client. December 2019