Client Comments

Court of Protection

If someone lacks capacity to make a decision in relation to any particular matter because of an impairment of mind, the Court of Protection can appoint a deputy to help the person come to a decision. The procedure for applying to the court and the powers which the deputy may be granted, are covered by the Mental Capacity Act 2005. The law and procedures are by no means simple. For example, just because someone is making an unwise decision does not mean the deputy or the court can impose what they might believe to be a wise decision. The legislation is all about empowering those who lack capacity wherever possible.

The Labour government decided some time ago that the civil courts must be self-financing so that those applying to the court are required to pay substantial fees. There are different forms to be used depending upon the nature of the application and lodging some of them attracts a fee as high as £400.

The deputy must work within the powers granted by the court and make an annual account to the Office of the Public Guardian (OPG) who regulate deputies.

Like any other court proceedings, you do not have to use a solicitor but it is inevitable that legislation, regulations, guidance, forms and case law will require careful consideration so that the costs of a solicitor experienced in this specialist area of work, could prove costs effective. O’Donnells have long experience of this type of work including wills, trusts, and gifts for tax planning purposes.

Lasting Powers of Attorney

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It may not always be necessary to make an application to the Court of Protection. An individual can execute a power of attorney in order for someone else to act on their behalf, including signing documents such as conveyances, contracts or cheques. It is common to use such a power if you are going to be out of the country or incapable for some physical reason of signing yourself. The standard power of attorney only has force as long as the individual has the mental capacity to do the act themselves. To get round this problem, use can be made of a Lasting Power of Attorney (LPA) which comes into force after the person loses capacity provided it is registered with the Court.

There are two forms of LPA namely one dealing with property and affairs and the other dealing with personal welfare. The first type is broadly familiar from the previous Enduring Power of Attorney which existed before 1st October 2007. Any existing EPA’s continue in force so there is no need to make an LPA unless the additional powers contained in the new legislation are required. The personal welfare LPA is new and deals with the matters commonly considered in ‘living wills’ and can include considerations such as the provision or withdrawal of lifesaving treatment. The issues which might have to be canvassed in such a power are profound and it goes without saying that the most detailed and careful consideration must be given to the drafting of such a document.

O’Donnells have long experience and expertise in the medical and legal issues required to advise on arising out of mental incapacity.