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Mental Capacity & Managing Affairs

Helping family and/or friends that are becoming mentally incapable can be a very challenging and distressing time. It is very difficult to know what to do and where to look for help. We understand that managing this can be daunting and carries an unprecedented responsibility.

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Our Vulnerable Client Team is made up of lawyers who specialise in all aspects of mental capacity and managing the affairs of a vulnerable/incapable person who has lost (or is beginning to lose) mental capacity. This could relate to Wills, Powers of Attorney, the Court of Protection, the Office of the Public Guardian and/or Community Care Law (such as Social Services and care funding).

The Team can advise you about decisions or matters which relate to a potentially vulnerable/incapable person in accordance with the Mental Capacity Act 2005 which provides the legal framework for decision making for people who lack mental capacity.

Whether the matter is simple or complex, we will give you realistic and cost effective advice to ensure that the best possible outcome is achieved; thereby protecting you and the vulnerable person.

Enduring Powers of Attorney

Enduring Powers of Attorney are still in use although you can no longer create or amend an Enduring Power of Attorney. If you have an Enduring Power of Attorney, this will only relate to your finances. Your appointed attorneys will not be able to make health care decisions.

If you wish to change an Enduring Power of Attorney, you will need to create a Lasting Power of Attorney instead.

If you know someone who has an Enduring Power of Attorney and they are beginning to lose capacity, the appointed attorneys have a duty to register the document with the Office of the Public Guardian at that point. 

Lasting Powers of Attorney

There are two types of Lasting Powers of Attorney, one relating to finances and one relating to health.

We advise clients to put these documents in place for peace of mind and with the hope that they will not need to be used in the future. They are a safeguard if you lose the mental capacity to manage your financial affairs or make healthcare decisions so that your trusted attorneys can do so on your behalf.

Deputyship

One can be appointed as someone’s “Deputy” by the Court of Protection when that individual is unable to make decisions for themselves, due to a lack of mental capacity – these decisions can relate to either finances or health. Such an appointment usually occurs because the vulnerable individual did not create an Enduring Power of Attorney or a Lasting Power of Attorney while they had mental capacity: therefore, an application needs to be made to the Court of Protection for the Court to appoint a “Deputy” to make decisions for the vulnerable individual.

The role of a Financial Affairs Deputy is to manage/safeguard the property and finances of the vulnerable individual. The Deputy has the same authority as the vulnerable individual with the same powers (unless restricted by the Court). The Deputy must always act in the best interests of the vulnerable individual and ensure that the decisions which they make solely related to that individual and their best interests.

Paris Smith Trust Corporation Limited can be appointed as a Financial Affairs Deputy if the individual does not have appropriate person/persons or if there is a difficult family dynamic (this is separate to a Panel Deputy – which refers to a panel of professional deputies that the Court of Protection can allocate cases to).

There might be a need for someone to make decisions about Health and Care matters. The Court of Protection can appoint an appropriate person to be appointed as a Health and Care Deputy. There must be a justifiable need for such an appointment which must be demonstrated to the Court.

Our Vulnerable Client team can advise you in relation to making a Deputyship application and the requirements.

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Office of the Public Guardian

The role of the Office of the Public Guardian is to protect vulnerable individuals from abuse. This includes supervising Deputies, keeping a register of Deputies, registering Powers of Attorney, and investigating any complaints about Attorneys or Deputies.

Our Vulnerable Client team can advise you on the following:

  • If you’re being investigated by the Office of the Public Guardian;
  • Registering a Power of Attorney with the Office of the Public Guardian; and
  • Objections in relation to the registration of a Power of Attorney.

The Court of Protection

The Court of Protection is a specialist court for all issues relating to people who lack capacity to make specific decisions. This court primarily deals with issues relating to cases made under the Mental Capacity Act 2005 and the making of decisions on behalf of an individual who cannot do so for themselves.

Common applications made to this court are:

  • Financial Affairs Deputyships
  • Health and Care Deputyships
  • Statutory Wills (that is a court approved Will for an individual that does not have the mental capacity to make a Will or amend their existing Will)
  • removal of a Deputy or an Attorney
  • requesting approval to make gifts
  • disputes about decision making
  • disagreements relating to placements

Our Vulnerable Client team can advise you in relation to such issues you may have that may require such an application to the Court of Protection.

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Arranging care

Understanding the Adult Social Services system is complicated and it is ever changing. Our team appreciates that the system can be difficult to understand.

We can assist you with:

  • understanding and guidance through the process;
  • challenging care and needs/financial assessments;
  • advising with regards to Deprivation of Liberty (DOLS) Assessments;
  • discussing NHS continuing health care/NHS nursing care; and
  • safeguarding issues.

Protecting Assets/Paying for care

In the difficult event that a friend or family member requires residential/nursing care, it can be difficult to know where to start. For example:

  • How does one find the right care home?
  • Can care be provided in the individual’s home?
  • How will the care be paid for?
  • What is a financial assessment?
  • What assets can be assessed?
  • What assets should be excluded from assessment?
  • What income can be assessed?
  • What benefits is the individual entitled to?
  • What should the Local Authority be doing?

Our Vulnerable Client team can help you answer those difficult questions or guide you to the appropriate places to find the answers which you need.

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Disputes relating to care

It might be that you are not happy with the process that has been undertaken or the care being provided. It might be that you are unhappy with the way the Local Authority has carried out its assessments and wish to challenge them.

Our Vulnerable Client team will provide you with realistic advice which will hopefully achieve the desired outcome as quickly and efficiently as possible.

Wills

A Will is the most important document that most of us make. This is because a Will incorporates our wishes about whom we wish to benefit, how we wish to benefit them and to whom we give the responsibility of dealing with our estate after our death. It is much better to have made an informed decision about your estate than to have the Intestacy Rules govern how your estate will be distributed, and by whom.

A Will can also be a very useful vehicle for:

  • inheritance tax planning;
  • protecting assets for vulnerable adults or children (by means of a trust);
  • protecting assets for the purposes of care funding (by means of a trust);
  • providing for guardians.
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Contact

Elizabeth Power
LLP Partner

T: 023 8048 2206
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Meet the Team

Ashleigh Bryant
Legal Assistant

T: 023 8048 2300
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Nick Turner
LLP Partner

T: 023 8048 2293
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Sarah Jessup
Legal Assistant

T: 023 8048 2344
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