When a family member or loved one becomes unable to make decisions on their own, the Court of Protection steps in to oversee their affairs, appointing ‘deputies’ to make day to day decisions. Our team of Court of Protection solicitors advise families and individuals on all aspects of the Court of Protection process and how to carry out the role of deputy. In many cases we take on the role of deputy ourselves.
We all want to make our own decisions. But sometimes old age, illness or personal injury makes this impossible. Many people are surprised when we advise them that a spouse, partner or family member can’t automatically take decisions about financial and health affairs of someone who has lost the ability to take those decisions. In the absence of an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA) you must apply for authority to manage someone’s affairs to the Court of Protection. At a distressing time our specialist team can provide reassuring, personal advice to ensure your interactions with the Court run as efficiently and as smoothly as possible.
The Court of Protection is a specialist court staffed by a range of Circuit, District and High Court judges. It is tasked with making decisions on behalf of individuals who do not have the ability to take decisions themselves. However t does not always make the decisions. Sometimes it appoints appropriate people, known as deputies, to do so. At DMH Stallard we represent deputies and also act as deputies ourselves. Key responsibilities of the judges at the Court of Protection include:
Decide on whether an individual can actually make a particular decision for themselves
Make decisions on finances and welfare that affect an individual who lacks capacity
Appoint deputies to make day to day decisions for individuals lacking capacity
Make decisions on the sale of a property for individuals lacking capacity
Decide on the validity of LPAs and EPAs
Remove attorneys appointed under LPAs or deputies who are not fulfilling their obligations
Hear and decide cases where there are objections to registration of an LPA or an EPA
In our experience, the time it takes from applying to be appointed as a deputy to the order being finalised by the Court of Protection takes between six and nine months. When the application is submitted certain people must be notified and be given time to respond to the application. If there are objections this can slow down the process. Once any objection has been dealt with, a judge will consider the application and decide whether to appoint a deputy or not. Factors the judge will take into consideration in deciding if an appointment is appropriate include whether the individual who lacks capacity has property that may need to be sold and whether there is a level of income that justifies the appointment of a deputy.
Normally the appointment of a deputy is an order that lasts as long as the individual who is unable to make decisions remains incapacitated. In many instances this is effectively for the remainder of the individual’s lifetime. Regular reviews of capacity of the individual should be carried out to ensure that deputyship remains appropriate. In addition, there may be occasions where a deputy is removed, and a new appointment order is required. These occasions will occur if the deputy does not fulfil their obligations and the Court deems removal appropriate. The deputy may also need to be removed if they become ill or incapacitated or no longer wish to act. A Professional Deputy may retire.
A deputy is appointed by the Court of Protection to make decisions for
Someone who has lost the mental capacity to take decisions for themselves. They should be over 18 and will normally be a relative or close friend. Because of the responsibility and the legal issues that can arise when managing someone else’s finances, it’s not unusual to appoint a professional like a solicitor to act as a deputy. It is something that our specialist solicitors at DMH Stallard can offer.
Property and finance deputies (the most common type of deputy) can manage a person’s financial affairs, for example, dealing with living expenses, running bank accounts, or buying and selling property. Personal welfare deputies are appointed in very limited circumstances to make healthcare and welfare decisions. However in most cases decisions about medical treatment and care are taken in consultation with healthcare providers and the individual’s family.
LPAs are made when the individual has the capacity to appoint his or her Attorney. As we’ve seen, the Court of Protection process is appropriate when someone has lost mental capacity to take decisions and does not have an LPA.
Usually you need to have the required mental capacity to make a valid will. The law recognises however that there are circumstances in which it is necessary or desirable that a will is put in place despite lack of mental capacity. For example all the beneficiaries in an existing will have died or the individual has high value assets and there are significant taxation implications if his or her existing will remains in place. In such cases it is possible to apply to the Court of Protection for an order that gives someone else the legal authority to execute a will on the incapacitated person’s behalf. This is called a Statutory Will. The process is complicated and DMH Stallard is instructed regularly in cases involving statutory wills. A great deal of information needs to be assembled and produced to the court. There may also need to be a hearing if for example potential beneficiaries or family members object to a new will.
The team are very responsive and communicate well with clients.
Legal 500 UK 2024
I always felt that nothing was too much trouble and if I did not understand anything I was always given the time I needed for things to be made clear.
Legal 500 UK 2024
Fantastic team who all are extremely knowledgeable
Legal 500 UK 2024
Meet the team
Court of protection work involves dealing with complicated, often distressing situations. For example, sometimes family members and loved ones disagree fundamentally about how to manage someone’s affairs. Whether we are advising you as a deputy or acting ourselves as professional deputies we are committed to providing professional, ethical guidance with skill and sensitivity.
We provided technical advice to clients with several million in assets and a substantial annual income. We advised on ways to substantially mitigate a potential inheritance tax liability of close to £1million. Steps we advised our clients to take included giving substantial gifts to family members on a regular basis to avoid the accumulation of surplus income in their estates and to insert specific provisions in each will to reduce exposure to inheritance tax.
Estate administration
Historically the deceased, used big name City law firms for some of his personal work. However, he chose to instruct DMH Stallard to draft his will and the executor has chosen to use us to administer the multimillion-pound estate because of our local knowledge. The breadth and depth of experience means we can deal sensitively with many of the internationally high-profile people who benefit under the will, or who are involved in the deceased’s estate.
Acting as Deputy for an individual with dementia
DMH Stallard were asked to manage the affairs of someone with dementia who had lost their mental capacity, were unable to manage their affairs and continue to live independently. DMH Stallard Trust Corporation applied to the Court of Protection to be appointed as their Deputies. There was no extended family or close friends. We found a suitable residential care home for them that specialised in dementia care and sold their property, taking financial advice to ensure there were sufficient funds to cover their care home fees and general living expenses.
Wills and Estate Planning advice
We provided estate planning advice to a married couple aimed at maximising allowances available to their estates. Specifically in this case we arranged for the wife to gift her residence nil rate band (RNRB) to the children in an attempt to bank relief because she had assets of a lower value than her husband. We maximised asset protection by incorporating a flexible life interest trust (FLIT).
Administration of a high net worth estate.
Historically the deceased, used big name City law firms for some of his personal work. However, he chose to instruct DMH Stallard to draft his will and the executor has chosen to use us to administer the multimillion-pound estate because of our local knowledge. The breadth and depth of experience means we can deal sensitively with many of the internationally high-profile people who benefit under the will, or who are involved in the deceased’s estate.
Advice on post-death variations of will and tax relief
DMH Stallard advised the executors of an estate where the deceased had assets held within a company registered at Lloyds. DMH Stallard successfully claimed Business Relief over various assets within the estate. We also advised the executors on a deed of variation which was successful in securing a reduction in the inheritance tax payable,
Lasting Power of Attorney
We often prepare Lasting Powers of Attorney as part of our overarching private client service, encompassing advice on wills, trusts, inheritance tax planning and succession planning. It’s an area of our practice that demonstrates the way we link various specialisms across the firm to enhance the service we deliver to clients.
Power of Attorney Advice
We provided advice and support to a lady in her 90s with frailty and early stage dementia. The PoA ensured that when her dementia progressed to the stage she could no longer make decisions for herself that one of her daughters would make all decisions in relation to her financial affairs and health and welfare. This was an important document that provided peace of mind and enabled the family to chose the care she received.
Advice on mitigation of inheritance tax
We provided technical advice to clients who were in their eighties with several million in assets and a substantial annual income. We advised on ways to substantially mitigate a potential inheritance tax liability of close to £1million. Steps we advised our clients to take included giving substantial gifts to family members on a regular basis to avoid the accumulation of surplus income in their estates and to insert specific provisions in each will to reduce exposure to inheritance tax.
Intervening to prevent client being pressurised into making investments
One of our long-standing clients contacted us as he was concerned that he was being pressurised to invest in a bond and to place his property in trust.
We were able to assist the client in making his own decisions, explaining to him his own financial situation to allow him to plan for his future.
We prepared a Property and Financial Affairs Lasting Power of Attorney where the client appointed the DMH Stallard Trust Corporation as his attorney, enabling us to assist and support him to make and execute decisions whilst he retained mental capacity. Furthermore, the LPA allowed the firm to protect our client’s best interests following the loss of mental capacity.
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