There can be many reasons why someone may not be able to manage their finances or make complex decisions. It could be they are elderly and have been diagnosed with dementia. They may be 30 and have recently suffered an accident at work resulting in a brain injury. It could be a teenager, 16 with learning difficulties or a child only 4 who has cerebral palsy.
It doesn’t matter what causes someone to lack the mental capacity to manage their finances, what is important is assisting them and ensuring they are looked after for the future.
What about making a Lasting Power of Attorney?
A Lasting Power of Attorney allows a person nominated by you to manage your financial affairs (you can also appoint an Attorney to make health & welfare decisions for you). Unfortunately, when someone does not have mental capacity to manage their finances they often also lack the mental capacity to make a Lasting Power of Attorney – but it something that should always be considered.
What is ‘the Court of Protection’ or ‘Deputyship’?
When someone lacks mental capacity we can apply to the Court for an Order appointing someone as their representative known as a ‘Deputy’. This person will be appointed by the Court to manage the individual finances and property or make decisions regarding their personal welfare.
The Court involved is the Court of Protection and they represent and protect those individuals who are vulnerable. They will ensure that the Deputy is supervised and can request to see the financial record keeping (usually once a year).
Most Deputies are appointed to assist with an individual’s financial affairs. A Deputy for personal welfare is rare, as usually the family will be involved in the day to day care for an individual, or they will have a care package which will involve carers or social services.
How long does the application to the Court take?
Unfortunately, it is a lengthy process and involves a number of steps, including:
- The preparation of documents which enables the deputy to apply to the Court;
- An assessment of capacity (usually by a doctor); and
- A declaration of suitability by the proposed Deputy
The Court takes time to ensure steps are taken to protect the vulnerable individual and to make sure the correct person is appointed as their Deputy. They will consider whether there are any alternatives to the appointment of a Deputy and check that there are no objections to the Deputy’s appointment.
The paperwork is complicated, however a Solicitor can assist your throughout the process and ensure that the Court protocol is followed.
Who can be a Deputy?
A person over the age of 18 can be a Deputy for an individual (except in some limited cases, for example where the proposed Deputy has been made bankrupt). This can be a family member, a friend or a professional such as a Solicitor or Accountant. It will depend on your own personal circumstances.
Advice about the Court of Protection
For more advice on the Court of Protection process and costs involved please contact a member of our Wills, Trusts and Probate department. Bray & Bray have three main offices across Leicestershire, feel free to phone or pop in to talk to our solicitors.
Leicester 0116 254 8871
Hinckley 01455 639 900
Market Harborough 01858 467 181