Court of Protection & Capacity FAQs - Boodle Hatfield

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Court of Protection & Capacity FAQs

Our team of experts have set out a series of user-friendly FAQs that detail some of the key terms that solicitors may use when working on legal cases involving Court of Protection & Capacity, alongside some scenarios where specialist legal advice may be required.

The Court of Protection is a specialist court which makes decisions for those who have lost capacity to make decisions for themselves.  The decisions can cover a whole range of issues from an individual’s health and welfare to their property and financial affairs.  Decisions are made by the Court according to what is in the ‘best interests’ of the individual lacking capacity.

Mental capacity is a complex area and can be affected by an illness such as dementia or Alzheimer’s disease, a stroke, a learning disability, which may have existed from birth, or a brain injury, sustained from an accident.  If someone is unable to make a decision for themselves, they are said to lack capacity.

Capacity is issue specific so an individual can have capacity to make some decisions but not others.  The complexity of the decision is almost always commensurate with the level of capacity required.  Capacity can be vulnerable to fluctuations.

If you have concerns about an individual’s capacity and they have substantial wealth, you should seek specialist advice so an assessment can be arranged and, if necessary, a deputy can be appointed on their behalf to manage and safeguard their wealth.  If you think your relative is being financial exploited, you will need to act quickly to protect their wealth.

Deputies are appointed to stand in the shoes of those who cannot make the decisions themselves.  The Court of Protection has power to appoint two types of deputies: (i) property and affairs deputies who make decisions about an individual’s money and property and (ii) health and welfare deputies who make decisions about health and welfare.

Property and affairs deputies are the most common.  Deputies have general powers, but there are limitations on their powers.  For example, they cannot authorise lifetime gifts or make a will on behalf of the individual lacking capacity.  They will need authority from the Court of Protection to do this, which will require a careful and well-evidenced application.

Where there is a dispute about what is in the best interests of an individual lacking capacity, it will need to be resolved by the Court of Protection, even if they have a deputy or attorney.

You should seek specialist advice about obtaining an assessment of their capacity and what steps can be taken to safeguard their money and welfare.

If you think your relative is being financial exploited by an attorney under a Lasting Power of Attorney or deputy you can apply to the Court of Protection for an order for them to be removed.

If you suspect that a relative has been coerced into making a will when they did not have capacity and which does not reflect their wishes, you can apply to the Court of Protection for a Statutory Will which reflects what would have been the individual’s intentions if they had capacity.

If property and money has been taken, a claim can be brought in the Chancery Division for the transaction to be set aside and for property and money to be restored to them.

The Court of Protection has the power to execute a will or a codicil for an individual who has lost capacity to make one for themselves.

A statutory will may be necessary where the individual does not have a will, or their existing will does not reflect what they would have wanted, or their circumstances have changed.

You may have concerns about an existing will because it was executed in suspicious circumstances, at a time when you believe the individual did not have capacity.  It might appoint an executor or benefit someone who you know is untrustworthy.

If you are concerned that the person only has a short time to live you can apply to the Court of Protection for an urgent will.

It is important to seek specialist advice if you have concerns as these applications must be carefully prepared and require detailed evidence in support.

A trustee must have capacity to perform their functions.  If a trustee loses capacity to do so, they will need to be replaced.  The document creating the trust should contain details about  who can appoint new trustees, otherwise it is usually the surviving or continuing trustees who can appoint a new trustee.

However, where a trustee no longer has capacity to act as a trustee and they have a beneficial interest in the trust property, no appointment can be made to replace them without authorisation from the Court of Protection, which accordingly must be sought.

Yes, an attorney or deputy can still carry out tax planning on behalf of the individual who lacks capacity: no one should be disadvantaged because they do not have or have lost capacity.  However, it will almost certainly require approval from the Court of Protection, for example, if they wish to make a lifetime gift to reduce inheritance tax.

An adult can execute a lasting power of attorney (LPA) which allows you to appoint one or more people to make decisions on your behalf. There are two types of LPAs, one for health and welfare and the other for property and financial affairs, and you can make one or both.

An LPA for health and welfare can only be used when you are unable to make your own decisions about your health and welfare. This is different to an LPA for property and financial affairs, which can be used as soon as it is registered, even if you still have full capacity, although the individual making the LPA can elect that it is triggered on incapacity only.

As an attorney will stand in your shoes and have access to all your assets, you must choose who you appoint very carefully. It could be a relative or friend or a professional, such as a solicitor or accountant. It is advisable to consider someone who manages their own affairs effectively, is completely trustworthy and who is familiar with your wishes.  This is important to avoid the risk of a dispute arising because of mismanagement of your affairs.

It is advisable to ask a solicitor to help you make a LPA as significant numbers are rejected by the Office of Public Guardian because of errors made when completing the documents.

Unfortunately, it is not currently possible to make a global Lasting Power of Attorney to cover worldwide assets.  Where an individual has international assets, they must either make a LPA equivalent in each foreign country where they own assets, in accordance with the law of that country, or take the necessary steps to gain formal recognition of their English power.

We have contacts all over the world which we can use to help us deliver a joined-up service to our clients who wish to put in place cross-border protective measures.  It is much easier to coordinate this while an individual has capacity, opposed to trying to control international assets once capacity has been lost.

Where there are welfare issues, it may be necessary to consider private international law aimed at the protection of vulnerable adults.

If you disagree about what is in your relative’s best interests, an application can be made to the Court of Protection, which will be able to consider your arguments.  The Court can order further information and assessments before making a final determination.

A dispute may have arisen in relation to a doctor’s decision concerning life-sustaining treatment or perhaps whether your relative should be repatriated to their country of origin.

As with all applications to the Court of Protection, it is important to seek specialist advice as they need to be carefully prepared and require detailed evidence in support.

We advise clients across the whole range of capacity and Court of Protection matters and associated claims in the Chancery Division of the High Court. Visit our Court of Protection & Capacity page here to find out more or get in touch with Partner, Nicola Bushby.