When a person becomes mentally incapable of handling their affairs, they are also usually incapable of delegating responsibility to someone else. Unless provision has been made for such a situation – such as through Lasting Powers of Attorney (LPA) – the usual way to deal with the matter is to appoint another person to act, by way of an Order of the Court of Protection.
In English law, the Court of Protection is a superior court of record created under the Mental Capacity Act 2005. It has jurisdiction over the property, financial affairs and personal welfare of individuals that lack the mental capacity to make decisions for themselves.
An application to the Court of Protection for the appointment of a deputy should be made when a person:
- is mentally incapable
- has not made an enduring power of attorney or a LPA (and is mentally incapable of doing so)
- has assets that need to be used or dealt with for their benefit, or otherwise need to be administered
Any person may be considered by the Court to act as a deputy. This can be a relative, a friend, or a professional person such as a solicitor.
Where medical evidence has been provided – and there appear to be sufficient assets to warrant the appointment of a deputy – but there is no-one willing or able to apply, the Court may direct the Public Trustee to make an application.
An application for the appointment of a deputy, although usually made by a close relative, can be made by anyone who is concerned about the finances of a mentally-incapable person. The individual making the application may apply for their own appointment, or suggest that someone else is appointed to the role.
Solicitors’ costs in dealing with such an application will usually be met by the funds of the incapacitated person.
If you would like more information about how our Birmingham-based specialists can help you with Court of Protection issues, please contact us.
Call us on: 0121 236 7388