The Court of Protection exists to make decisions on property, finance or welfare matters for individuals who cannot make decisions for themselves as they lack capacity within the meaning of the Mental Capacity Act 2005. The loss of capacity may arise through a brain injury, illness or an age-related disability. The court is responsible for deciding if someone has capacity to continue to make their own decisions, including appointing Deputies to act on a person’s behalf, permitting one-off decisions, approving certain decisions of a Deputy or Attorney, and considering applications to make statutory wills or gifts. Sometimes, however, disputes can arise with Court of Protection applications and our team of expert solicitors have been instrumental in bringing these to a successful resolution.
A Lasting Power of Attorney will appoint someone you trust to manage their property, finance, health and welfare. It must be put in place before capacity is lost. For the occasions that this has not occurred, the Court of Protection provides the vital function of approving an appointment as a Deputy and ensuring that a policy of insurance is in place in the event of a Deputy acting negligently or dishonestly.
Although many families can agree between them a suitable candidate for appointment as a Deputy, in the event of any disagreement, the Court of Protection will receive an application and evidence from the disputing parties and determine the appropriate appointment. If necessary, the court can depart from accepting either of the competing applications and appoint a court-appointed panel Deputy if this is in the best interest of the client. This can be a stressful and time-consuming experience, and it is always recommended to seek specialist legal advice in the times where a dispute is evident. Our Court of Protection solicitors are able to expertly advise on this complex process.
A Deputy, or an Attorney following registration of an LPA and dealing with property and financial affairs, may require Court of Protection authority to deal with the donor’s property; for example, in the sale or transfer of the donor’s home to the Deputy himself, another family member or a sale at an under value.
The Attorney or Deputy may need to sell an asset to pay for care, but the asset may be subject to a specific gift in the will. As the sale of the asset defeats the specific gift, an application for approval of the sale may be appropriate together with an application for a statutory will to enable a gift to be made in lieu of the disposed of asset.
Where a person has lost capacity and it is considered appropriate for them to make a will, the Court of Protection must authorise the execution of the will. This is known as a statutory will and examples of where a statutory will may be needed include: where the vulnerable person has never made a will before; the estate has reduced or increased in value; tax planning purposes; disposal of a specific legacy; a beneficiary under an existing will has passed away or a beneficiary under an existing will has already received substantial gifts, and the will should be adjusted.
Our aim is to offer practical and realistic advice and guidance, whether a dispute relates to the appointment or actions of a Deputy, or a dispute around residence or treatment. Our solicitors in Essex and London recognise the difficulties for Deputies and are receptive to the needs of our clients when dealing with the claims and affairs of vulnerable individuals in a considerate manner.
Our services for disputed Court of Protection applications include:
Making and contesting Applications for Deputyship appointment
Acting as a professional Deputy
Submitting applications to the court for approval
Investigating and making applications for removal of a Deputy
Objecting to the registration of an Enduring Power of Attorney
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