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Your Court of Protection questions answered
Who can make decisions for someone that lacks mental capacity?
A – This depends on whether any arrangements were put in place before the person lost mental capacity. If the person had put in place a Lasting Power of Attorney before they lost capacity, their affairs would be managed by their appointed Attorney. If the person loses capacity without having this document in place, then a friend or relative can apply to become a Court of Protection Deputy to make decisions on their behalf.
Who can become a Court of Protection Deputy?
Anyone over 18 can apply to be someone’s Court of Protection Deputy. Deputies are usually the friends or relatives of the person that has lost capacity, but if no one is able to act as a Deputy, the Court can appoint a Panel Deputy.
A Panel Deputy is someone pre-approved by the Court to act on behalf of people that don’t have the mental capacity to make important decisions for themselves. Anthony Fairweather and Anne Minihane, senior partners at Clarke Willmott, are both Court approved Panel Deputies.
I’m concerned that someone’s Court of Protection Deputy isn’t acting in their best interests. What can I do?
If you have a concern about the decisions that a Court of Protection Deputy is making about a vulnerable person’s finances, there are a number of ways that we can help. Mediation between the concerned parties is often an effective way of addressing concerns without the need to go to court and, unless there is an allegation of abuse, we would usually recommend this approach in the first instance. We can also help you report these concerns to the Court of Protection and if necessary, apply to the Court to appoint a new Deputy.
What is the difference between a Court of Protection order and a Power of Attorney?
Power of Attorney gives an appointed Attorney the power to make welfare and/or financial decisions on someone’s behalf, when they lose the capacity to do so themselves. These powers are set out in a Power of Attorney document, which is drawn up by a person whilst they have mental capacity.
A Court of Protection order is normally used when a Power of Attorney is not already in place. The order gives a Deputy, appointed by the Court, the permission to manage the affairs for someone who cannot manage them themselves. This happens after they have lost mental capacity.
A Court of Protection order can be used to give additional powers to an Attorney, dealing with the affairs of someone without mental capacity.
What should I do if a person that lacks mental capacity doesn’t have a Will?
If a person lacks the capacity to make their own Will, then an application can be made to the Court of Protection to make a Statutory Will on their behalf. The application is normally made by someone authorised to act for the person lacking mental capacity – such as a Court of Protection Deputy or someone with Power of Attorney.
Can a Court of Protection Deputy manage assets or property held abroad?
Yes they can. Although sometimes getting a Deputyship Order or Power of Attorney recognised in a foreign jurisdiction can be more complex. Clarke Willmott’s international Court of Protection solicitors can liaise with financial or legal institutions on the Deputy or Attorney’s behalf.
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