We are frequently asked whether there is anything that can be done to allow someone to deal with the affairs of a person who has become mentally incapable of managing those matters on their own, but that person has not prepared an Enduring Power of Attorney or a Lasting Power of Attorney.
This often comes to light as a problem when family members try to use the person’s accounts to settle bills etc and are informed by the bank they do not have authority to do so. Fortunately, there is a solution to the problem.
How can we help?
What is the Court of Protection?
The Court of Protection is a part of the court system in England and Wales with responsibility for matters involving vulnerable adults.
They are able to appoint people (often family members) to manage the affairs of those individuals who lack the mental capacity to make decisions about their own affairs but have not appointed attorneys. This can be in relation to their finances and property and in some cases, their health and welfare. The people appointed by the court are called deputies.
Types of applications
Deputyship order
A deputy order is a legal decision made by the court to appoint someone as a deputy. This deputy is responsible for making decisions for a person who cannot manage their own affairs due to conditions like dementia or severe illness. This means a trusted person can handle financial or personal matters on their behalf.
Replacing an incapable trustee
If you are appointed as an attorney under an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA), or as a deputy by the Court of Protection, you might think you can handle all matters for that person. However, if the donor is appointed as a trustee and unable to continue their role, you may need to apply to the Court of Protection to appoint a new trustee so the trust can still be properly managed.
How does the court decide that a person lacks capacity?
There are many reasons that someone may be considered to lack the capacity required to manage their own affairs, for example:
- They have suffered a medical trauma (e.g. a stroke)
- Are suffering from an an underlying illness or injury which affects their cognitive abilities
- Have dementia
- They have severe learning difficulties or disabilities
As part of the application, medical evidence needs to be submitted to the court to confirm that the person can no longer make decisions for themselves. This evidence is sometimes provided by the person’s doctor or consultant but if that isn’t possible, then an independent capacity assessor can be instructed to prepare the necessary document to support the application to the court.
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