At mfg, we have a specialist team with a wealth of experience in Court of Protection matters who can help you with:
- Making a Last Power of Attorney for you
- Registering an existing Power of Attorney
- Managing your property and finances under a Power of Attorney
- Applying for property and financial deputyship for your loved one, to enable you to look after their property and financial affairs
- Applying for members of our experienced team to be appointed as professional deputies for property and financial affairs, where we will take on all the obligations that deputyship entails
- Helping you with one-off advice or a service such as completing the end-of-year Office of the Public Guardian’s report for your loved one
- Making a statutory will or gift for someone you are already a deputy for, including for the purposes of Inheritance Tax Planning
- Replacing a trustee where they lack capacity to perform the requirements of the role
Where someone has lost testamentary capacity, that is the mental capacity required in order to make a valid will, it may be possible to apply to the Court of Protection to sign what is known as a “Statutory will” on their behalf. This can help you to give effect to your loved one’s wishes after they are no longer able to sign their own will.
Most commonly, this may be to give effect to a will that was drafted before your loved one lost capacity but, as happens in life, the process was never completed and the will was never signed. However it could also be because circumstances have changed that render and existing will no longer appropriate, or where your loved one does not have a will and life events mean relying on the intestacy rules would no longer be in your loved one’s best interests.
You can only apply for authority to sign a statutory will if your loved one has made you their attorney under a Lasting Power of Attorney or if you have been appointed by the Court of Protection as their deputy.
At mfg, we can help you with preparing a statutory will application including drafting the proposed will. If you would like to discuss making a statutory will on your loved one’s behalf, please give our knowledgeable and friendly Court of Protection team a call on 01562 820181.
Where a trustee has lost mental capacity to perform their functions under the trust, such as signing documents which may be crucial to proper functioning of the trust, it may be necessary to remove them as a trustee and appoint a replacement. This can be the case in family trusts as well as commercial enterprises.
At mfg, we can help you by applying to the Court of Protection on your behalf to remove and replace a trustee. If you would like to discuss a replacement trustee application please give our knowledgeable and friendly Court of Protection team a call on 01562 820181.
Get in touch
Our knowledgeable and friendly team are all Dementia Friends, and our team leader is a member of the Association of Lifetime Lawyers. Should you have any Court of Protection query not outlined above, please do contact us on 01562 820181, and we will be happy to discuss your individual circumstances to see how we can help.
For the purposes of the FAQ’s, your loved one is referred to as “P”.
What are my options where my loved one has lost mental capacity to make me their Power of Attorney?
Where it is determined that “P” (your loved one) has lost the mental capacity to make this decision, you can apply to the Court of Protection to be appointed as their deputy. This gives you largely the same powers as a Lasting Power of Attorney (LPA ) would. However you also have additional obligations which include:
Payment of a Court of Protection application fee of £371
Arranging a security bond for the value of P’s assets, which acts like an insurance premium which the Court requires all deputies to put in place (we can assist with this)
An annual payment made to the Office of the Public Guardian
These payments can all be refunded from P’s monies once a deputyship order is made.
You will also be required to complete an annual report to the Office of the Public Guardian documenting all decisions made on P’s behalf, all money received and spent for P and any other actions taken for P in the year.
If you believe P’s total assets are lower than would justify the expenses outlined above as well as any professional legal fees, for example if they do not own property and have no savings, then becoming a benefit appointee (link) would be a more appropriate route for you to consider.
How do I know if my loved one has lost mental capacity to manage their property and financial affairs?
This assessment may be made by your loved one’s social worker or GP. Alternatively, if concerns have been raised but no formal decision has been reached, we can arrange an independent capacity assessment which will determine whether P can grant a power of attorney or whether to proceed with a deputyship application.
How do I pay my loved one’s care fees where I don’t have power of attorney?
To pay care fees out of P’s money, you would need to apply to become their deputy for property and financial affairs and as part of the application you can ask for an interim order to release some of their funds to us as your solicitors; we can then pay care fees whilst you are waiting to become the deputy, at which point you can take over this responsibility.
Can you help me apply to become deputy for health and welfare?
At mfg, we don’t offer professional deputyship for health and welfare decisions, and we also don’t usually assist with these applications because the Court of Protection guidance is that such decisions can usually be made on a “best interests” basis for P, without the expense of applying for deputyship. In contrast, financial institutions such as banks will not recognise a decision on P’s behalf unless a deputyship order has been made.
How long does it take to be appointed deputy?
Each application is unique and the length of time taken for an application to be successfully granted will vary, however the process is highly unlikely to take any less than six months.
What are the steps to being appointed as deputy?
As each application is unique, these will vary on a case-by-case basis.
However as an indication of what you can expect from us in a straightforward matter, we will usually begin with either a face-to-face or telephone meeting with a member of our Court of Protection team once you have accepted our estimated costs and terms of business.
We will then look to obtain a capacity assessment for your loved one, to confirm they lack capacity to grant a power of attorney instead, and once received we will progress with the paperwork required for the application. Once all paperwork is complete, we will make the payment to the Court on your behalf and then submit the deputyship application.
Should the Court have any queries, we will address these and seek any further information that may be required.
Once an order is made, we will provide our final bill so that this can be paid out of P’s funds.
This example is for illustration only and each case will progress on an individual basis.
What are the obligations of a deputy?
All deputies are required to act in accordance with standards published by the Office of the Public Guardian.
Being appointed as deputy for property and financial affairs is a responsible task and means you have a duty to act in P’s best interests in relation to their property and finances. As such:
- You will be required to complete an annual report to the Office of the Public Guardian documenting all decisions made on P’s behalf, all money received and spent for P and any other actions taken for P in the year.
- Depending on the size of P’s estate, you may require independent financial advice to ensure you are managing their portfolio in their best interests.
- You are encouraged to keep clear records of your actions on P’s behalf.
You will also be helping P with their day-to-day affairs which will be specific to each individual but may include:
- Setting up and making payments on their behalf for things such as care fees, direct debits for utilities, telephone, and any other agreements. Many banks and utility companies will not discuss P’s account with you unless you can evidence deputyship granted by the Court in the absence of an LPA.
- Managing the sale of their property, where specific authority has been granted by the Court for you to do so. This may enable to you to release vital funds to contribute towards P’s care fees and spent on improving their quality of life.
- Ensuring they receive all entitlements such as pensions and state benefits, which you will be able to apply for and sign on their behalf.
Your initial obligations once an order has been made includes making the following payments which can later be refunded from P’s monies:
- Arranging a security bond for the value of P’s assets, which acts like an insurance premium which the Court requires all deputies to put in place (we can assist with this)
- Paying a Court of Protection Application fee of £371 when the application for deputyship is submitted (paid in advance of the application being made)
- Making an annual payment made to the Office of the Public Guardian, the value of which depends on P’s assets