Court of Protection, Lasting Power of Attorney, Power of Attorney

The mysteries of the Court of Protection

What is the Court of Protection?

This is the Court which deals with matters relating to the affairs of people who are not able to handle their own affairs. Typically it deals with cases where elderly people develop dementia or other illnesses affecting mental capacity, which means that the individual is not able to manage their own financial affairs. Other cases involve people who suffer head injury following clinical negligence or road traffic accidents.

Why is the Court needed?

When people cannot make their own decision, then the Court needs to ensure that appropriate decisions are made for these individuals, allowing actions to be taken which are in the best interests of the person concerned.

What if there is a Power of Attorney?

If the individual has signed a Power of Attorney at a time when they were fit and well, then the person appointed as Attorney will be able to make the decision, and usually this will avoid the need for the involvement of the Court of Protection.

An individual might have signed an Enduring Power of Attorney (before 1st October 2007) appointing someone to manage their financial affairs. From the beginning of 1st October 2007 individuals have been able to sign a Lasting Power of Attorney for property and financial affairs (appointing someone to deal with their financial affairs) or for health and welfare (appointing someone to make decisions about health and welfare needs).

What is a Deputy?

A Deputy is someone appointed by the Court of Protection to supervise the affairs of a person who is unable to manage their own affairs. A Deputy might be appointed for finance, which means that that person can manage the financial affairs of the person concerned, subject to supervision from the Office of the Public Guardian. The Court may appoint a Deputy for health and welfare, which means that the Deputy can make health and welfare decisions for such persons in cases where that person cannot make their own decisions. Appointments of Deputy for health and welfare are much less frequent than for financial affairs, but the Court will make such an Order in necessary cases.

Specialist Advice

Members of the Elderly Client Department at Morrish Solicitors are experienced in handling Court of Protection matters. Tom Morrish has been appointed as Court of Protection Deputy in dozens of case over the last fifteen years or so supervising the financial affairs of elderly persons who have lost their mental capacity, or of persons who have suffered head injuries as a result of an accident or clinical negligence.

Can the Court of Protection be avoided?

In many cases this can be avoided by advance planning. Getting your affairs in order by signing Lasting Powers of Attorney in most cases avoids the need for the Court of Protection, even if later in life you suffer deteriorating health and an inability to manage your affairs.

Contact one of our Elderly Client Team for advice in this area of work. It’s always best to obtain specialist legal advice rather than dabbling on the Internet or obtaining misleading advice or comment from friends who think they know the answer.

Yeadon Office
Tom Morrish
Kiranjeet Chana
T: 033 3344 9609

Pudsey Office
Charlotte Bandawe
Christina Taylor
T: 033 3344 9607

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Court of Protection

Court of Protection

The Court of Protection is probably an institution that a lot of readers won’t have heard about. It is a Court based in London which helps to look after individuals who lack the capacity to make decisions for themselves. Someone loses their mental capacity in a variety of ways. The most common of these is when an elderly client is suffering from one of the various forms of dementia in a moderate to advanced stage.

If you have concerns for yourself and you still have the mental capacity to appoint others to assist you with your property and affairs or person welfare, you can do so under a Lasting Power of Attorney, or LPA. If it is felt that you no longer have the capacity to make this decision and you do not already have in place an Enduring Power of Attorney or Lasting Power of Attorney, it will be left for the Court of Protection to appoint a person called a ‘deputy’ to look after your affairs on your behalf.

A Deputy in most cases tends to be a close relative but in some cases a professional deputy, such as a solicitor. There is a need for the proposed deputy to make an application to the Court of Protection and submit evidence in support. That evidence includes a medical report prepared by a GP or consultant. There are prescribed application forms which must be completed to begin the application. Notice must be given to the person’s close relatives and any person with an interest in their welfare such as their unmarried partner or carer. These persons have a right to raise any concerns about the proposed Deputy’s suitability to act. The Court can refuse an application if they feel the proposed deputy is unsuitable.

Once the application has been sent to the Court it usually takes 3 – 6 months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.

A Court of Protection application can be a costly process. Dependent upon the incapable person’s income, you may need to pay an application fee of £400. The GP/Consultant preparing the medical report will also charge between £50-£250. The Deputy has to also take out a ‘security bond’ to cover their actions as Deputy and this too is payable annually. The bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the bond. The bond tends to be between £100-£300 per annum. In addition, if you instruct a solicitor to assist with the application, costs will be incurred of several hundred pounds minimum plus VAT . All costs involved would come from the incapacitated person’s own money.

Once a Deputy is appointed, they will take control of the incapable person’s finances and property and, if applied for, their personal welfare. The Deputy must always act in the incapable person’s best interests and comply with the Mental Capacity Act 2005 and related Code of Practice. The Deputy must keep accurate records of his dealings with their assets and income and submit an annual account to the Office of the Public Guardian. There are three levels of supervision and the Court will set this.

A Deputy has to account to the Court at all times. Any major decision (such as selling someone’s property) needs the Court’s permission. Every year the Deputy has to provide a ‘Deputyship Report’ to the Court. This gives the Court information on decisions that the Deputy has made on that person’s behalf and also provides summary accounts for the Court to approve.

It is possible for a Deputy to be appointed to make personal welfare decisions on an incapable person’s behalf, e.g. where they should live or what medical treatment they should receive. However, the Court will only appoint a Deputy in extremely limited circumstances such as where there is disagreement amongst family members/carers or where their medical condition means that treatment decisions must be made frequently.

A Court of Protection application is always the last resort. If you have the capacity to appoint someone to act for you, you should take steps to make a Lasting Power of Attorney to protect you in the event that you lose capacity in future.

If you would like further information on the Court of Protection process or Lasting Powers of Attorney, please contact us. All of our Elderly Client Solicitors are members of Solicitors for the Elderly, a recognised national organisation, specialising in this area of practice.

James Shingleton
Solicitor

Morrish Solicitors LLP
(QualitySolicitors Lindley Clough is a practicing name of Morrish Solicitors LLP)

Court of Protection, Disputed Will, heir, Inherit, Inheritance tax, Legacy, Power of Attorney, Probate, Wills

Chief Ombudsman says thousands ‘ripped off’ by unregulated will writers

From the BBC’s website 18 July 2011Last updated at 02:33

Thousands of people are being ripped off by companies providing unregulated services such as will writing, claims the first Legal Ombudsman.

In his first report, Chief Ombudsman for England and Wales Adam Sampson said the most complaints he saw concerned conveyancing, family law and wills.

He called for action to be taken to ensure consumers were not left vulnerable by unregulated services.

Only a tiny fraction of legal services must be provided by a qualified lawyer.

Many others including will writing, divorce, employment and immigration can be done by unqualified and unregulated individuals and organisations.

“One service which crops up a lot is will writing. It’s a service carried out often by will-writing firms who aren’t regulated,” said Mr Sampson.

“Because of this, customers are left with little means of redress when things go wrong.

“We’ve seen similar confusion about claims management companies, with lots of consumers believing they’re getting a legal service even though most of the work is carried out by a non-authorised person. Again, we can’t help.”

‘Unregulated cowboys’The legal ombudsman was appointed in October 2010 and can only act on complaints from those using the services of qualified lawyers.

Consumer organisation Which? and the Law Society have backed the ombudsman and called for more protection for customers.

They said bundling legal services with financial services, including those offered via the internet, had posed serious dangers for consumer protection.

Which? executive director Richard Lloyd said: “As the legal-services market continues to grow in both size and complexity, it’s crucial that consumers who have paid for a legal service that’s not up to scratch know where to turn to get help.

“We want the government and regulators to wake up to the current lack of clarity and to provide a clear and straightforward route of redress for consumers.

“The arrival of a legal-services market in which consumers will, potentially, have complaints about hybrid services poses some serious questions about who they’ll be able to turn to for help.”

Des Hudson, chief executive of the Law Society for England and Wales, said: “The gap in regulation which allows unregulated cowboys to operate in areas like will writing does not just cause unfair competition to solicitors, who provide a regulated, professional service.

“It is also damaging to consumers because the unregulated providers are not insured, do not provide a compensation fund and are not covered by the Legal Ombudsman’s scheme for consumer redress.”

A spokeswoman for the Ministry of Justice said will writing was an important issue and that it welcomed the report.

She added the department will await the outcome of the Legal Service Board’s ongoing work.

Ends.

Want your Will handled by a professional, specialist solicitor? Please contact Tom Morrish or Charlotte Bandawe on 0113 250 7792 or Charles Clough, James Shingleton or Christina Fleming on 0113 224 8084.

Related stories:

The Law Gazette

The Legal Ombudsman’s Annual Report

Court of Protection

Solicitors For The Elderly regional meeting 22 June 2011

Date: 2011-06-01

There are still places available for this seminar.

Guidance from the Official Solicitor on statutory will and gift applications in the Court of Protection

Janet Ilett – Senior Lawyer in the Official Solicitor’s Office

The Yorkshire Regional Group of Solicitors for the Elderly (“SFE”) are delighted to host a seminar on the above topic in Leeds on Wednesday 22nd June 2011.

The presentation will take place at 3 Albion Place Leeds LS1 6JL from 2.15pm – 4.30 pm (registration from 1.45pm) and is open to all.

Our speaker is Janet Ilett – Senior Lawyer in the Official Solicitor’s Office.

See booking information below. Booking will be on a first come first served basis. Space is limited. The event will be followed by complementary wine and nibbles.

Please feel free to pass this e-mail on to contacts who may be interested.

Any queries re SFE please contact me or go to http://www.solicitorsfortheelderly.com

Note – the “member” rate of payment is only available to those who are members of SFE at the time of the event, not to those who have just submitted an application. Please ensure your membership no. is included on your booking form

Tom Morrish
Regional Coordinator
SFE Yorks Regional Group
Tel. 0113 250 7792