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Mental Capacity & Court of Protection

Many individuals will be affected by issues of mental capacity in some way during their lifetimes either themselves or as a carer, family member or friend.

It goes without saying that individuals want to make decisions for themselves as long as they are able to do so. The recent health crisis has demonstrated just how important it is to decide who you would like to make choices about your care, and the management of your finances, when you no longer have the capacity to do so yourself.

What key documentation do I need?

You need to prepare key documents that help protect your financial interests and health and welfare when you are no longer able to make decisions yourself. These documents include two types of Lasting Powers of Attorney (LPAs), which specify who will take responsibility. You can also prepare Living Wills (Advance Decisions), which set out the circumstances under which you would not want to receive life-sustaining medical treatment.

How do I validate a document such as Lasting Powers of Attorney?

In order to be valid, LPAs need to be registered. Existing Enduring Powers of Attorney (EPAs) also need to be registered by the nominated attorney as soon as the donor is becoming mentally incapable of managing their property and affects. We deal with this registration to ensure the nominated attorney, or attorneys, have the power to act when they need it.

If someone loses capacity with no Power of Attorney in place and there is a need for someone to deal with their affairs, then an application may be made to the Court of Protection for a Deputy to be appointed. We can support you with this and also assist lay deputies with the day to day running of the Deputyship by completing the necessary Court of Protection forms, producing Deputyship reports and accounts and Tax Returns where needed.

Should you need to make an application to the Office of the Public Guardian to make a Statutory Will, organise some tax planning or to remove funds from the Court Funds Office, we are able to assist, including where this involves a family dispute.

What does it mean if I agree to be someone’s Attorney?

Being someone's Attorney can be as daunting as organising an Attorney for yourself. Once you have completed the forms, the Office of the Public Guardian will confirm that the Lasting Power of Attorney has been registered and you may feel an overwhelming sense of responsibility. We have created a step by step guide outlining what decisions you are likely to make, especially financial, and what records you need to keep. Please click here to view the guide.

For more information about our approach and recommendations around family governance, please see our crisis management and family governance page on our COVID-19 hub.

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