Dealing With The Affairs Of Someone Who Does Not Have Capacity

When a loved one does not have mental capacity as a result of illness, accident or infirmity, it can be extremely daunting for families. It is now a reality that we could all be faced with these types of issues.

If the person has not previously made a Lasting Power of Attorney or Enduring Power of Attorney and can no longer make one, the rules that govern this are laid down by the Court of Protection.

WHAT IS THE COURT OF PROTECTION? The Court of Protection makes decisions and appoints representatives (known as Deputies) to act on behalf of people who are unable to make decisions about their personal finance, health or welfare. It follows the rules set out in the Mental Capacity Act, which protects and empowers individuals who are unable to make certain decisions for themselves.

The Court will appoint a Deputy to step into the decision-making role on behalf of the person who lacks capacity. As all individuals have different needs, the Deputy can tailor the support provided to complement and encourage independent living and support individuals to make decisions for themselves where at all possible.

WHO CAN BE A DEPUTY? A Deputy may be a professional person such as a solicitor, or can be a relative or friend. It will depend upon the individual circumstances as to what is best for them.

Amongst other things the Court 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 to act.

Samantha Buckthought, a Partner and Head of Wills and Trust Department at Wolferstans, is a Panel Deputy.

THE TEAM Wolferstans has a dedicated and experienced Court of Protection team. Samantha Buckthought is a Deputy for over 70 individuals who all have varying individual circumstances and for whom she manages their financial affairs on a day-to-day basis.

We offer different levels of approach to Court of Protection cases:

• An Application Service. This is where we assist those who wish to apply to be a Deputy. For this service (which is usually conducted for a fixed fee) we will prepare the application forms and deal with the application on your behalf. When the Order is received from the Court appointing you as Deputy, matters are then handed back to you for you to deal with the day-to-day management of the person’s affairs.
• Ad hoc advice. This is where we provide ad hoc advice to existing Deputies with regard to their role. This could include assisting with annual returns, complying with other Court obligations, and dealing with any other matters arising, including applications for specific circumstances. Clients can opt for our retainer service where for a fixed fee we can control certain day-to-day roles of the Deputy and be on hand to support the Deputy.
• Acting as Deputy. We can act as a Deputy and manage the day-to-day financial affairs for clients. These cover a wide range of circumstances:
  • Elderly clients
  • Clients with head and brain injuries
  • Clients with learning difficulties and mental illness
  • Clients with compensation settlements following litigation
  • Clients living in care homes or in the community
  • Isolated clients and clients with estranged families

COURT APPLICATIONS In addition, we can also act in contested applications to the Court of Protection upon deputyship or other matters.

This may be in assisting clients with standalone applications to the Court, assisting them in objecting to other applications that are being made, contested proceedings and ongoing Court of Protection matters.

In addition we can also assist clients in relation to identifying whether a particular course of action is regarded to be in a client’s best interests, and in best interests’ decision-making, both outside and within the Court.

We can also assist in relation to any applications under the Deprivation of Liberty safeguards.

EXPERT WITNESS WORK We can also offer a dedicated expert witness service. The Panel Deputy, Samantha Buckthought can prepare expert reports for litigation matters, 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.

Our teams consists of lawyers who are members of the Law Society Private Client Section, Solicitors for the Elderly or STEP (Society for Trusts and Estate Practitioners) and are therefore accredited and recognised as specialists in their field. With one of the largest local private client teams, we are able to advise you on your concerns whatever they may be.