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The Court of Protection

20th April 2015

The Mental Capacity Act 2005 provides a comprehensive code to protect people who lack capacity to make decisions for themselves. Its implementation is increasingly required due to our ageing population whose decline is, all too sadly, accompanied by impaired capacity.

With an increasing awareness of dementia, many people as they approach retirement, grant a Lasting Power of Attorney to their selected Attorney. This is a document by which a person (the “Donor”) confers power on another (the “Attorney”) to act on their behalf in connection with their finances and property and/or their health and welfare. The existence of a finance and property LPA enables the Attorney to manage the Donor’s finances easily to include controlling their bank account, and so much more such as benefit applications, dealing with their pension, taxation issues and paying care costs.

However, what happens when there has been no such forward planning and there is a decline into dementia or an unexpected stroke or a tragic road accident, and there is no LPA in place? This is when the Court of Protection will feature.

What is the Court of Protection?

This is the specialist Court dealing with all issues relating to people who lack capacity to make specific decisions. The Court can appoint a Deputy to make ongoing decisions on behalf of an individual who lacks capacity in relation either to their finance and property or their personal health and welfare. The Deputy can be a family member but more often is a professional.

The process of obtaining an Order appointing a Deputy is not a speedy one, nor is it simple or cheap. There will be Court fees to pay and the requirement to put a security bond in place with an insurer. In addition, the Deputy will be responsible for filing annual accounts to the Court and will be under the supervision of the Court.

It is essential for those who do not accept professional advice to make an LPA to understand the workings of the Court of Protection should they not put in place such a “safety net”. Their future life can be managed and their quality of life maintained easily under the terms of an LPA once mental or physical capacity is lost, thereby avoiding the complexity and expense of the Court of Protection.

Ursula Watt
Head of Private Client

Family Law
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