Wills & Probate

Court of Protection

If someone you love lacks mental capacity and cannot make their own decisions about their financial affairs or personal welfare, we can help you make an application to the Court of Protection to make decisions on their behalf.

The Court of Protection has the responsibility for looking after the affairs of people who lack mental capacity for whatever reason, whether it be due to a brain injury or illness such as dementia, severe learning difficulties, or mental health problems.

The Court has various powers to allow the loved ones of those lacking mental capacity to make important decisions on their behalf (deputyships), to create Statutory Wills, and adjudicate on the validity of Power of Attorneys. It can also make health and welfare decisions in some circumstances.

If you think it may be necessary to make an application to the Court of Protection, we recommend that you seek our advice first. Our highly skilled Court of Protection solicitors have years of experience making applications on behalf of clients. The application process is complex, involving a number of different forms depending on the type of application being made. You’re also required to provide expert evidence to support your assertion that your loved one lacks mental capacity. It’s therefore crucial to consult a specialist solicitor before proceeding.

Applications to the Court of Protection can also be expensive and a source of great anxiety to family members, therefore, this route should ideally be a last resort. If you’re concerned about becoming unable to make your own decisions in future, we can help you create a Lasting Power of Attorney to authorise someone to make decisions on your behalf if necessary. In this way you can avoid the need for your affairs to be dealt with by the Court of Protection.

For further information please get in touch with our Court of Protection Solicitors in Westbury-on-Trym and Shirehampton by giving us a call, requesting a call back, or completing our online enquiry form.

What our Court of Protection solicitors can do for you

At Devereux & Co, we understand how distressing and tiring it can be to care for a family member who lacks mental capacity. What can make the situation even more challenging is, unbeknownst to many, close family members aren’t automatically authorised to deal with a person’s finances.  

Our aim is to take the weight off your shoulders as much as possible by helping you access legal authorisation to make decisions regarding your loved one’s welfare and financial affairs. Our Court of Protection expertise includes:

  • Mental capacity assessments
  • Deputy appointments
  • Statutory Wills
  • Selling jointly owned property
  • Powers of Attorney creation and registration

Mental capacity assessment

The Court can decide whether a person has capacity to make a particular decision for themselves. This is called a mental capacity assessment.

The definition of mental capacity is the ability to make a decision at the time it needs to be made (as capacity can fluctuate). Common reasons people lack mental capacity include:

  • Dementia, such as Alzheimer’s
  • Brain injury
  • Stroke
  • Severe learning difficulties
  • Severe mental health issues.

Under the Mental Capacity Act 2005, everyone is presumed to have mental capacity. Before declaring incapacity, you should support your loved one as much as possible in making decisions, for example, allowing them time to process information or using alternative methods of communication such as signs.

However, ultimately, a person will lack mental capacity where they cannot:

  • Understand information provided to make a decision or what making the decision means
  • Process or retain information related to the decision
  • Weigh up the advantages and disadvantages associated with the decision
  • Communicate their decision, even with support

All Court of Protection applications should be submitted with an Assessment of Capacity form (COP3) setting out the opinion of an expert, such as a medical practitioner, nurse, occupational therapist, or psychiatrist, who is associated with the individual concerned in the application.

We can provide advice on whether your loved one is likely to be deemed incapacitated by the Court as well as helping you compile your application and expert evidence.

Deputyships

If someone close to you suffers from a mental incapacity, you can ask the Court to appoint you as their Deputy and authorise you to make decisions on their behalf.

There are two types of Court of Protection Deputy:

  • Property and Financial Affairs Deputy – someone authorised to do things like pay bills, manage bank accounts, collect pension payments, and pay care fees
  • Personal Welfare Deputy – someone authorised to make decisions about a person’s care and day-to-day activities

A person can either be one kind of Deputy or both.

Statutory Wills

The Court of Protection can make a Statutory Will on behalf of someone who lacks mental capacity. A person will be unable to make their own Will (called lacking testamentary capacity) where they don’t:

  • Understand what a Will is or what making one means
  • How much money or property they have
  • The impact of making a Will upon the Beneficiaries, anyone who would be left out or anyone otherwise entitled to inherit under the Rules of Intestacy

Statutory Wills are intended to reflect an incapacitated person’s wishes (as they would have been if they had mental capacity) and to prevent them dying intestate whereby their money and property may be distributed against their wishes.

If you’re concerned that your loved one doesn’t have a Will and is unable to make one, we can help you make an application for a Statutory Will to protect their best interests.

Selling jointly owned property

If you jointly owned property with someone who cannot sell or transfer their interest because they lack mental capacity, we can help you apply to the Court of Protection to appoint someone to act on their behalf.

The appointed person will be allowed to sign legal documents on behalf of your loved one, allowing you to sell the property.

Powers of Attorney

We assist clients with the registration of Enduring Powers of Attorney and Lasting Powers of Attorney:

  • Lasting Power of Attorneys (LPAs) – a legal document whereby you (the Donor) appoint an Attorney to make decisions about financial affairs and/or your welfare in the event you lose mental capacity in the future. LPAs must be registered and the people listed in the document notified
  • Enduring Power of Attorneys (EPAs) – a legal document whereby you (the Donor) appoint an Attorney to make decisions about financial affairs. Only EPAs made prior to 1 October 2007 can be used. EPAs must be registered as soon as the donor starts to lose mental capacity and the registration form sent to the donor, their family members, and the other Attorneys

Whether you are a donor looking to create and register an LPA or an Attorney looking to start acting under an EPA, we will act swiftly and efficiently to get the document legally registered on your behalf.

For further general information, please visit our Powers of Attorney page.

Get in touch with our Court of Protection Solicitors today

For further information please get in touch with our Court of Protection Solicitors in Westbury-on-Trym and Shirehampton by giving us a call, requesting a call back, or completing our online enquiry form.

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