How Can a Court of Protection Lawyer Help You?

Capacity Issues and Mental Capacity Assessments

You may have concerns about a person’s mental capacity to make decisions for themselves, such as managing finances, signing legal documents, or deciding where they should live.

A Court of Protection Lawyer can:

• Explain the legal definition of “mental capacity” in clear terms.
• Advise when a formal capacity assessment is appropriate.
• Help you arrange capacity assessments with suitably qualified professionals.
• Ensure the process is handled sensitively.

Deputyship Applications

If an individual lacks the mental capacity to manage their finances and welfare and does not have a valid Lasting Power of Attorney in place, it may become necessary to apply to the Court of Protection for a Deputyship Order. This legal process appoints someone, the ‘Deputy’, to make decisions on behalf of the person who lacks capacity.

A Deputyship application may be considered if you are:

• Struggling to engage with banks, care providers, or other professionals to assist in making decisions for someone closely connected to you.
• Unable to access funds to pay for care or household bills.
• Finding that organisations will not speak with you without formal authority.

When appointed as Deputy, you have the legal authority to be involved in decision-making for the person who lacks capacity.

A Court of Protection Lawyer can:

• Accurately prepare the complex Court application paperwork and submit the application on your behalf.
• Draft the detailed witness statements and supporting documents required.
• Gather all essential evidence to support the case.
• Liaise with the Court of Protection on your behalf, tracking progress and responding to any queries.

This support can help reduce stress and delay, securing the order you need as efficiently as possible.

Note: For more information on Deputyship Applications, please see this FAQ article.

Acting as a Professional Deputy

In some cases, a Court of Protection Lawyer may be appointed as a professional Deputy, managing the affairs and making important decisions for someone who lacks capacity. With extensive experience and in-depth knowledge, every decision is made in the person’s best interests, adhering to the highest professional standards.

This can be particularly helpful where:

• The person has a high net worth or complex financial arrangements.
• There is disagreement or tension within the family.
• There is no suitable family member or friend able or willing to act.

The Court may sometimes be reluctant to appoint lay Deputies, including family members, when the person who lacks capacity has a high net worth or a complex estate. In these situations, Court of Protection Lawyers can step in and take the role, relieving families of the administrative burden and allowing them to focus on their personal and emotional bonds with the individual who lacks capacity.

Acting as Professional Attorneys

A Court of Protection lawyer can be appointed as a professional Attorney under a Lasting Power of Attorney (“LPA”). An LPA gives the Attorney the authority to assist an individual with their property and finances and/or make health and welfare decisions.

Appointing a professional Attorney can be a "belt and braces" approach, in case the individual loses capacity to make these decisions for themselves in the future. When a lawyer is appointed as Attorney, the Court of Protection team can manage the day-to-day finances and/or welfare decisions of the person who lacks capacity.

Note: For more information on appointing Professional Attorneys, please see this article.

If you have a friend, family member, or neighbour that you believe may be struggling to manage their day-to-day financial or welfare affairs, and you believe that Blanchards Bailey is appointed as a professional Attorney, please do not hesitate to reach out to the Court of Protection team to express your concerns.

Advice on Scope of Authority

As a Deputy

Your authority is limited to what is set out in the Court Order of appointment. You must understand what the Order allows you to do. If your actions and/or decisions fall outside the scope of your authority, you risk breaching a Court Order, which can have serious consequences.

A Court of Protection lawyer can review your Order with you, explain each part clearly, and advise on whether proposed actions fall within your powers.

As an Attorney

Your powers are defined by the Lasting Power of Attorney document, which may contain specific limitations. It is crucial to be clear about what actions you are permitted to take and what may fall outside of your authority.

A lawyer can interpret the LPA, advise on tricky decisions, and ensure that your actions remain within the scope of your authority, reducing the risk of disputes or challenges later on.

Your Duties and Responsibilities under the Mental Capacity Act 2005

You have a duty to act in the best interests of the individual who lacks capacity at all times. When it comes to big decisions, such as arranging for care or selling property, you may wish to obtain expert legal advice from a Court of Protection Lawyer to ensure what you are deciding is truly in the best interests of the person. Consulting with an independent and impartial professional can provide valuable clarity and reassurance.

As an Attorney/Deputy, you are guided by the Mental Capacity Act 2005. It is therefore imperative that you have a good knowledge and understanding of the Act to ensure your decisions comply with the legal requirements. A Court of Protection Lawyer can offer you clear and practical advice to help you meet the expected standards.

As a lay Attorney, it may be difficult to understand your duties and responsibilities, which is why our Court of Protection team are here to assist you.

One-Off Court Applications

When you want to make a decision as an Attorney or Deputy, but this falls outside of your general authority, our specialist Court of Protection team can assist you with making an application to the Court of Protection for the required approval to enable you to make the decision.

For example, there are strict limits on gifting from a person’s funds. Our experienced team can advise you on the authority that you have to make gifts where required. If any proposed gifting falls outside of your general authority to gift, we can assist you in making an application to the Court of Protection for approval.

How We Can Help

Our specialist Court of Protection team supports individuals and families with capacity issues by clearly explaining the options available and focusing on what is in your best interests. For tailored Court of Protection advice and assistance, please contact Sophie Lawrence, Senior Associate and Head of Court of Protection. 

• Tel:  01258 459361
• Email: blandford@blanchardsbailey.co.uk
• Location: Blandford, Dorchester. 

You can also visit the Court of Protection page on our website for more information.