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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Important things to do if your elderly relative or friend goes into a Care Home

  1. Check the relative’s house is secure – Insurers are notified, valuables are removed etc.
  1. Check that someone is able to manage the relative’s financial affairs.  Most  residents of Care Homes will need assistance with their financial affairs.  Check if there is a Lasting Power of Attorney or Enduring Power of Attorney authorising someone to handle financial matters.
  1. If there is no Power of Attorney, can the relative sign one now to appoint someone to assist?  If they are able to understand a Power of Attorney then you should discuss this with the relative as soon as possible.
  1. If the relative is unable to understand a Lasting Power of Attorney then it is necessary to apply to the Court of Protection.  Someone will need to apply to the Court to be appointed as a Deputy to manage the financial affairs. This takes time (four months or so) so it is sensible to get on with it, as financial matters will need sorting.
  1. Apply for Attendance Allowance if this is not being received already.  This is a tax-free benefit which is not means tested for elderly people who need assistance with care.  The rate is £55.10 per week if the relative needs help during the day only, and £82.30 per week if assistance is required both day and night.
  1. Consider how the care is going to be paid for.  The Local Authority will provide assistance with care if a person has assets less than £23,250. Otherwise it is necessary to pay for the care in full.
  1. It is always sensible to obtain advice about the above matters.  Solicitors who are members of “Solicitors for the Elderly” will always be able to assist.  At Morrish Solicitors, four of our Solicitors are members  Tom Morrish and Monika Volsing work at our Yeadon Office.  Charlotte Bandawe and James Shingleton work at our Pudsey Office.  We also see clients at our office in Oxford Row Leeds LS1 3BE.  See solicitorsfortheelderly.com
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Funds raised for Alzheimer’s Society

We are delighted that we have been able to raise substantial funds for the Alzheimer’s Society during 2014-2015.  The Alzheimer’s Society has been our Charity of the Year and Morrish Solicitors LLP will have raised almost £10,000 for the charity.

We have engaged in a series of dress down days, sold cakes, attended a Memory Walk at Roundhay Park, and arranged a raffle.

As we all know, dementia is a dreadful illness which is affecting increasing numbers of people.  In our Elderly Client Department our Solicitors are assisting people with dementia on a daily basis, whether it be by assisting in management of their monies or preparing Lasting Powers of Attorney, or handling matters through the Court of Protection.  We are all members of Solicitors for the Elderly and specialise in assisting older members of the community with their legal affairs. We are delighted that we have been able to make a sizeable financial contribution to the work of the Alzheimer’s Society who provide such valuable support to those affected by dementia and their carers.

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Who are Solicitors for the Elderly?

  • Does an elderly family member need specialist legal advice?
  • Where can you be sure that the advice they receive is good advice?
  • Can you be certain that the service they receive is of a high standard in relation to the advice they seek?

There is one organisation which can help to fulfil your expectations and you can be assured that the advice you need is specifically aimed at the families and carers of elderly and vulnerable people.

The organisation is called SOLICITORS FOR THE ELDERLY (SFE).

Which can be found at www.solicitorsfortheelderly.com

SFE is an independent national organisation of solicitors barristers and legal executives who have registered as members of SFE.

All members must fulfil the membership criteria by primarily working with elderly clients in specialist areas such as

  • Wills (including disputed Wills, tax planning & trusts within Wills)
  • Lasting Powers of Attorney
  • Care home fee advice
  • Court of Protection

To name but a few.

To become a professional member of SFE, members are required to complete an exam to show their knowledge and competency in this area as well as following the SFE code of Practice.

At Morrish Solicitors LLP all of our solicitors in the Private Client Department are members of SFE:

Should you require specialist advice for an elderly or vulnerable family member then please do not hesitate to contact us.

If you do not live in the Leeds or Bradford area then you can search for an SFE member in your local area on the SFE website.

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

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