The Mental Capacity Act became law in 2007 bringing with it for the first time a framework and protections for some of the most vulnerable adults in society- those people who lack the mental capacity to make decisions for themselves whether due to dementia, alzheimer’s, schizophrenia or other mental health issue. The Court of Protection was created so that decisions can be taken under this area of the law in the best interests of the person whom lacks capacity.
The issue of capacity can be an long term condition or a temporary lack of capacity. If an individual is assessed as lacking capacity to make a decision for themselves, the person who makes that decision must do so in their best interests.
If someone is unable to manage their financial affairs or welfare issues due to mental incapacity, someone else will need to do so on their behalf. This can be by way of appointeeship through the Department for Works and Pension, a lasting power of attorney created while the person had capacity, or by the appointment of a deputy by the Court of Protection.
Unless a Lasting Power of Attorney has been created then it will be necessary for the Court of Protection to appoint a deputy to administer finances and give authority to sell or buy assets. A deputy application was previoulsy known as a Receivership application. Some people see a Deputy appointment as a ‘court appointed attorney.’ The court process can take a long time which will cause significant problems if urgent action is needed. The application to the court will include a medical certificate confirming incapacity along with details of the assets, affairs and circumstances of the individual.
Welfare decisions may need to be made on behalf of a person whom lack capacity in relation to matters such as their place of residence, the care they receive and their contact with other people. We have experience of acting in such matters and can gudie you through the process.
If all the people around them, including family, doctors and social workers, can agree what is in their best interests this decision can be recorded and implemented on their behalf. If these parties have different views about what is best and no agreement can be reached, it is the Court of Protection who will be asked to make this decision.
The best way of avoiding problems and expense is to make a lasting power of attorney. This allows you to choose who you wish to appoint to deal with your affairs and offers a much quicker and cheaper alternative to a deputyship application.
We can help to prepare both lasting powers of attorney for welfare and finances.
We can also prepare applications to the Court of Protection for the appointment of a financial deputy and we can act for incapacitated individuals and their families where welfare issues are being determined. In relation to welfare matters we can also offer legal aid funding in appropriate cases.
We can see clients in the office, hospitals, care homes, or own homes.