Eve Carter of Harrison Drury’s Home & Family team explains some of the circumstances in which the Court of Protection may be called upon to protect the interests of those who have lost mental capacity.
The majority of us like to have our personal affairs in order, but it is worth planning ahead for a time when we might need assistance.
By thinking now about our financial and legal arrangements we can make the future much easier for everyone involved.
The benefits of a lasting power of attorney
Stories in the media often highlight the implications of future incapacity and it has become commonplace to consider making a lasting power of attorney at the same time as you make a will.
If you have a power of attorney in place when you lose capacity, the person you’ve nominated will be able to assist with decision making for you in respect of your personal property and affairs and also health and welfare matters.
It is also possible to arrange a specific power of attorney for your business affairs to be managed by a professional to ensure a company can continue to trade.
It becomes a little more complicated if you have already lost capacity. The law requires anyone wanting to assist you to have the correct legal authority to do so. The Court of Protection has responsibility for people who do not have mental capacity, therefore, any solutions will require an application through the court.
A deputy can be appointed to act on behalf of the court to allow a person’s affairs to be managed in their best interest by their relative or a solicitor. This can also apply to your business affairs if you have not made any other incapacity provision, but a delay is inevitable as a deputy application can take around three months to process.
What happens if a family member has already lost capacity?
If you do not have capacity and have had to move into residential care, a court application would also be needed to appoint a trustee to enable your property to be sold so that the proceeds could be used to provide for you.
The court also has the power to approve a will for someone without capacity if it is shown to be in their best interests, meaning that there are still possibilities to write a will where the circumstances are right.
An application for the approval of a statutory will can be made to write a will, or amend an existing will, if it is inappropriate. With recent changes in legislation, it may be that an amendment to the will would allow the family to take advantage of tax planning arrangements. It could also be used to write a will that more accurately reflects what the person would have wanted had they retained the capacity to make the amendments.
Where there is surplus capital, the court can also approve lifetime gifting from the estate if the person does not have capacity which can be used to assist family members, deal with a business or for tax planning.
Eve Carter is Head of Private Client at Harrison Drury. She acts as a professional deputy and attorney for many disabled children and adults and specialises in Court of Protection work. To speak with Eve, contact 01772 258321.