Court of Protection and Deputyship
We have a specialist Court of Protection team who understand the complex issues which can arise when a person lacks or loses the mental capacity to manage their own property and financial affairs. We can advise you on Powers of Attorney, becoming a Deputy, appointing a professional Deputy, making routine or contested applications to the Court of Protection, Compensation Protection Trusts and care funding.
Our Court of Protection team is headed by Sophie O’Connell and Samantha Buckthought. Samantha is one of only about 70 Panel Deputies in England and Wales. To become a Panel Deputy, professionals must undergo a rigorous selection process and show that they meet all the Deputy standards when managing their cases. The Court of Protection will refer cases to Panel Deputies when there is no-one willing or able to act for a person.
Sophie’s experienced team carry out the day to day work, although the responsibility for decisions rests with Samantha as the appointed Deputy. The team prides itself on being client focused and caring and having a large team provides a wealth of experience.
What is the difference between a Lasting Power of Attorney or Deputyship?
A Lasting Power of Attorney (LPA) is made by a person who has mental capacity and they can choose who they would like to act on their behalf. If it is not clear if a person has the mental capacity to make an LPA, a qualified professional will do a capacity assessment.
If a person lacks the capacity to make an LPA it may be necessary to apply to the Court of Protection for a Deputyship.
If you need an LPA visit our Power of Attorney page for more information.
The Court of Protection is the Court in England and Wales dedicated to issues relating to people who lack mental capacity. The Court can make decisions or appoint deputies to make decisions in relation to a person’s property and financial affairs or a person’s health and welfare. It follows the rules set out in the Mental Capacity Act 2005 , which protects and empowers individuals who are unable to make certain decisions for themselves.
The Office of the Public Guardian (OPG) is responsible for supervising appointed Deputies and investigating any complaints about a Deputy when concerns are raised that they may not be acting in a person’s best interests.
A Deputy may be appointed if a person is assessed as not having the capacity to make decisions about his or her affairs or personal welfare, although personal welfare Deputyships are less common.
A person must be assumed as having capacity unless it is established that he or she lacks capacity. This is normally determined by a “capacity assessment”, which can be completed by the individual’s own GP or a specialist practitioner. There is normally a charge of around £100 – £200 for this assessment.
If an individual is found to lack capacity, a Deputy can be appointed to help manage his or her affairs. A Deputy may be a professional deputy or a relative or friend of the person alleged to lack capacity. It is possible that the Court may decide to appoint joint Deputies if this is believed to be in his or her best interests. A Panel Deputy may be appointed in situations where an individual has no friends or relatives or where there is no-one deemed suitable or willing to act.
The OPG oversees Deputies by asking them to complete an annual report. This helps to ensure the funds are being managed appropriately and in accordance with the Deputy Order.
The Court of Protection maintains a select Panel of individuals who act as Deputies, recognising their skill and expertise in this area. The Panel nationwide consists of a small number of members and a Panel Deputy will be appointed by the Court if there is no-one else available and willing to act. Samantha Buckthought, Senior Private Client Partner at Wolferstans, is a Panel Deputy.
A Personal Injury Trust (also known as a Compensation Protection Trust) is a way of managing compensation received due to a personal injury. By placing your compensation in a Personal Injury Trust it is ring-fenced so that it is not linked to your other personal capital.
Advantages of a Personal Injury Trust
The main advantage of a Personal Injury Trust is that it allows the beneficiary (you) to claim means-tested state benefits whilst still being able to benefit from the Trust fund.
Normally, an individual having capital over a certain limit or income over a certain level is disqualified from entitlement to certain benefits. By putting the money into a Personal Injury Trust, it is not viewed as your, or the trustee’s, personal capital – the money belongs to the Trust. This means that it is disregarded by the Department for Work and Pensions for the purpose of means-tested state benefits.
Amongst others, the following means-tested benefits can be protected by creating a Personal Injury Trust:
- Income Support
- Income-related Jobseeker’s Allowance
- Housing Benefit
- Employment and Support Allowance
- Council Tax Benefit
- Working Families Tax Credit
- Disabled Person’s Tax Credit
Even if you are not currently on means-tested benefits, a Personal Injury Trust can protect you by preventing the loss of any future benefits you may be entitled to should your circumstances change, including help with long-term care.
How long do I have to make one?
In order to avoid any loss of benefits, a Personal Injury Trust should be set up as soon as possible before you receive your award. There is a ‘grace period’ of 52 weeks from the date you first receive any payment in relation to the injury – which could be a charitable payment. The 52 week period is subject to special rules and we do not recommend that you rely on it.
Who should I appoint as my trustee?
When deciding who to appoint as your trustees, it is important that they are individuals whom you trust and who are good at managing money. You should have at least two trustees although you may have up to four. Your trustees must be at least 18 years of age and you should not appoint anybody who is bankrupt, has entered into an individual voluntary arrangement with their creditors, or who has been convicted of an offence involving dishonesty.
What is required of the trustees?
Upon completion of the Trust document, the trustees will need to set up a joint bank or building society account to hold the Trust funds once received. The account will be in the name of the Trust. In order to set up the account, the trustees will need to provide the bank with identification as well a copy of the Trust Deed. When the Trust is established, they must act in your best interests. Depending on the value of the award they may have to consider seeking advice on investing the monies. They would also need to meet at least annually, and sometimes more frequently to discuss the Trust.
Does it affect the Trustee’s benefits position, tax or employment?
No, the Trust monies are not in any way part of their funds.
How much of my award do I need to put into the trust?
You can put either all or part of your compensation payment into the Trust. It is important to appreciate that anything that is not paid into the Trust may affect your benefit entitlement.
The Court of Protection team at Wolferstans consists of 10 team members. The team is made up of Solicitors, Legal Executives, Legal Assistants and Paralegals all bringing extensive experience to each matter.
Every Court of Protection client has had a different experience resulting in them needing our help, therefore it is important that we are able to provide a bespoke package so that we can adapt to each client’s needs. Experience within the team includes:
- Deputy Management
- Attorney Management
- Local Authority Funding
- Personal Injury and Trusts
- Clinical Negligence
- Court Applications
The Court of Protection team realise that when a person is losing capacity or has lost it, it can be very distressing for the people surrounding them and our aim is to take a personal and sympathetic approach when dealing with all clients and their family and friends.
We aim to work with our clients to assist them to manage their affairs and to build a positive relationship with the wider support network so our clients’ affairs runs as smoothly as possible.
Samantha Buckthought is the Senior Private Client Partner at the firm and is a Panel Deputy for the Court of Protection; one of only approximately 60 in the country. This is a prestigious appointment which recognises her skill and expertise over many years in working for people who are unable to manage their financial affairs . She acts as deputy, attorney and trustee for people with a wide range of abilities and additional needs, including mental health issues, learning difficulties, brain and head injury, age related illnesses such as dementia and cognitive difficulties. She is also a skilled litigator and private client lawyer, acting in administration of estates, will drafting and estate and tax planning for both simple and complex and high value estates. She is a member of COPPA, the Institute of Legacy Management and the Law Society Private Client section.
Sophie O’Connell, Head of Court of Protection, manages the financial affairs of clients who lack the capacity to do so for themselves for various reasons, and of clients who have appointed the partners at Wolferstans as their attorneys.
Sophie is experienced in making applications to the Court of Protection for both Property and Affairs, Personal Welfare Deputies and Statutory Wills. She provides advice on health and social care funding as well as Court of Protection matters and is an affiliated member of STEP.
Sophie works with clients who have an acquired brain injury, families with children who have an acquired brain injury, elderly clients and clients with mental health problems. She often works with complex cases and this involves clients’ wider network of support such as case managers, therapists, social workers, family members and financial advisers.
Sophie leads the Court of Protection Team at Wolferstans, a growing team which specialises in Court of Protection matters. The team operates within the framework of the Deputy Standards, working with clients and their wider support network to assist them to manage their affairs and respond to their individual needs.
Corrin Masters, a Legal Assistant in the Court of Protection Team, has experience of managing the property and financial affairs for a range of different people including elderly clients with Dementia, people with an acquired brain injury and people with learning difficulties. One third of Corrin’s time is spent on each of these groups of people respectively, giving her a broad range of experience of people’s varying needs.
Nadia Kelley, a Graduate Legal Executive in the Court of Protection team, has a wealth of experience in making applications to the Court of Protection and in the management of the affairs of incapacitated individuals. Nadia manages several complex brain injury and dementia clients, from children to elderly clients requiring a high level of skill and expertise. She supports these people in the management of their finances on a daily basis. Nadia’s achievements include invoking security bonds, applications to the Court for Statutory Wills and other one-off applications for the existing Deputy.
Nadia also assists in the management of the affairs of clients with Lasting Powers of Attorney who are either unwilling or unable to continue to manage their finances themselves. Nadia also has experience of Community Care and Local Authority funding matters and s117 aftercare funding and Personal Injury Trust advice, creation and management.
Alexandra Laity, Legal Assistant, joined the Court of Protection team in June 2018 and has over 15 years’ experience of working with vulnerable adults on behalf of the local authority.
Alexandra spent 10 years as a technical expert on the Court of Protection team where she dealt with some of the more contentious cases and specialised in working with young adults with learning difficulties.
Alexandra also spent 5 years as a visiting officer, assessing clients contributions towards care packages and residential stays.
She has a good working knowledge of adult social care processes and welfare benefits.
She is responsible for the day to day management of Deputyship and LPA cases within the Wills and Trust department.
Hannah Goodwin, Solicitor in the Court of Protection team, transferred to the team in April 2018 and now handles a case load managing the finances and affairs for clients who lack capacity to manage this for themselves.
The majority of Hannah’s clients lack capacity as a result of an acquired brain injury. Many have substantial assets as a result of a successful personal injury or clinical negligence claim. Some clients have on going negligence claims so her background in personal injury is helpful in understanding the civil court’s processes and being able to liaise appropriately with the interested parties.
Hannah also manages the finances and affairs of clients who have named Partners of the firm as their attorney. Hannah is also part of the team who prepare and advise on Personal Injury Trusts.
Vicky Furzeland, a Legal Assistant in the Court of Protection Team, manages a small case load of clients who lack capacity to manage their own property and financial affairs as well as preparing applications to the Court of Protection to appoint Property and Financial Affairs Deputies and completing the Annual Reports. She also assists Lay Deputies once they have been appointed as Property and Affairs Deputies with general advice and help.
The Court of Protection team offer a range of services which can be tailored to suit each client’s individual requirements:
We assist those who wish to apply to be appointed as a Deputy for Property and Affairs and/or Health and Welfare. This service is normally conducted for a fixed fee. We will prepare the application forms and deal with the application on your behalf. When the Order appointing you as deputy is received from the Court of Protection, matters are then handed back to you to deal with the day-to-day management of the person’s affairs. The Court of Protection usually authorises the appointed deputy to pay all fees from the estate of the person that lacks capacity.
Acting as Professional Deputy
We can apply to the Court of Protection for our Samantha Buckthought , to be appointed as Deputy for property and financial affairs. She currently acts as deputy for many clients, each of whom lacks capacity in varying circumstances. Samantha has an experienced team who manage the day-to-day financial affairs for clients. Samantha Buckthought is a Partner and one of a small number of Panel Deputies in the South West appointed by the Office of the Public Guardian. She currently acts as deputy for many clients, each of whom lacks capacity in varying circumstances; for example:
- Elderly clients
- Clients with head and brain injuries
- Clients with learning disabilities
- Clients with mental health problems
- Clients with compensation settlements following litigation
- Clients living in care homes or in the community
- Isolated clients and clients without relatives or with estranged families
Deputy/Attorney Assistance Service:
We provide advice and assistance to help you in the initial stages of the deputyship or acting as an attorney. This can include registering the Court Order appointing you as Deputy, help with setting up accounts and records and providing advice on health and social care funding. This will usually be for a fixed fee.
One off applications to the Court of Protection and ad hoc advice:
We can assist with one off applications to the Court of Protection. For example, applications to sell property, to appoint trustees and to make gifts. We also provide ad-hoc advice to existing Deputies in relation to their role. This could include assisting with annual reports, complying with other obligations, and best interests’ meetings including representing you. For a fixed fee; clients can opt for our retainer service, in which we assist with or control certain day-to-day roles of the Deputy and be on hand to support the Deputy wherever necessary.
If a person does not have the mental capacity to make a will, then in order to make or change a Will, you can apply to make a Will on their behalf. This is known as a Statutory Will. We can advise you as to whether a statutory will should be considered and if so, make an application to the Court of Protection.
Advice about health and social care funding:
We offer a one-hour fixed fee session in which we provide advice about how the social and health care funding system works and how to ensure that the person for whom you are Deputy or Attorney (or yourself) is receiving the care they need and are entitled to. We can also undertake further work to challenge inadequate care and support packages.
Compensation Protection/Personal Injury Trusts:
We can provide advice about setting up Compensation Protection Trusts, also known as Personal Injury Trusts, and prepare the Trust Deed. Wolferstans can also act as professional trustees in Compensation Protection Trusts.
Expert Witness Work
We offer a dedicated expert witness service. The Panel Deputy, Samantha Buckthought, can prepare expert reports for litigation purposes and can advise during the course of litigation as to the costs of, practicalities and issues surrounding deputyships. During such matters it is very important to have expert involvement at an early stage to ensure that such matters are appropriately considered and costed.
We have lawyers who are members of the Law Society Private Client Section and Solicitors for the Elderly or STEP (Society for Trusts and Estate Practitioners) and are therefore accredited and recognised as specialists in their field.
If you would like more information or would like to arrange a no-obligation appointment with one of the Court of Protection team, please call one of our New Client Co-ordinators on 01752 292288 or 01752 292221, or visit their profiles to contact them via email.