Here is a list of frequently asked questions on the Court of Protection, Deputyships and Lasting Power of Attorneys. If you'd like to speak to our Court of Protection team instead, call us on 0370 1500 100 or fill out our online form and we'll call you back.
Questions on the Court of Protection
What Is The Court Of Protection?
The Court of Protection helps people who don’t have the mental capacity to manage their own affairs. It has the power to make decisions for people about their money, property, health or welfare.
The Court can also give these powers to someone else like a relative or close friend who can manage their loved one’s affairs. This usually happens if there is a need to make decisions on a long term basis. If the Court gives these powers to someone else, they are called a Deputy.
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How Do I Apply To The Court Of Protection?
You can apply to the Court of Protection for permission to make decisions for a loved one if they lose the ability to make their own. To apply, you’ll need to fill out a minimum of four forms and provide a doctor’s certificate. This certificate needs to confirm to the Court that the person can’t make their own decisions.
In some cases you may need to fill out an extra form, depending on what powers you’re applying for. You might only need the power to make financial decisions for your loved one. You could also choose to only make decisions on the treatment they receive in hospital.
We can help you to work out which forms you’ll need. Our solicitors can also complete them for you and make sure they’re processed by the Court of Protection quickly. Contact us on 0370 1500 to start the process.
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Questions on Lasting Power of Attorney (LPAs)
What is a Lasting Power of Attorney?
As you get older you can make a Lasting Power of Attorney (LPA). This is a legal document that sets out how you would like others to manage your financial, health and welfare if you lose mental capacity. In this document, you’ll also choose someone to act as your attorney who’ll manage your affairs if you can’t in future.
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When Can I Make A Lasting Power Of Attorney?
You can make an LPA at any time, as long as you have mental capacity when you do. You must be able to understand the decisions you’re making.
To help prove that you understand the decisions you’re making, you’ll need a Certificate Provider. This is a person that can confirm that you have the capacity and understand what it means to make an LPA.
The Certificate Provider needs to be someone who has known you for more than two years and is more than just an acquaintance. They can also be someone with relevant professional skills like a solicitor, financial advisor or doctor. They shouldn’t be connected to your appointed attorneys in any way.
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Who Should I Choose As An Attorney?
You should choose someone you trust to will make decisions for you in your best interests. People normally choose family or friends but many prefer to choose a solicitor. You can choose anyone as long as they’re over 18 and have the mental capacity to make important decisions for you.
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Are There Different Kinds Of Lasting Powers Of Attorney?
Yes, there are two kinds of Lasting Powers of Attorney:
1. Property and Financial Affairs – allows you to appoint someone to manage your finances and properties2. Health and Welfare – allows you to appoint someone to make welfare decisions for you if you can’t do this yourself.
You can choose to make one or both of these. You can also appoint the same attorney for both or different attorneys for each.
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Can I Have More Than One Attorney?
Yes, you can appoint more than one attorney. You can decide if your attorneys must make their decisions together or can make their own decisions separately.
You can also appoint a replacement attorney in case something happens to your first attorney. If you appoint your spouse as your attorney, you could appoint your children as replacement attorneys if your spouse dies or loses their mental capacity.
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How Do I Make A Lasting Power Of Attorney?
You can make an LPA online or fill out paper forms. Both of these options are available on the Gov.uk website with guidance on how to fill them out. There are different forms depending on what type of LPA you’re making.
Once you’ve filled them out you’ll need to submit them to the Office of the Public Guardian. They’ll check through your forms and make sure they’re filled in and signed properly. Your forms must be signed in a very specific order so it’s important to make sure you fill in everything correctly.
We recommend that you send your forms in as soon as possible to avoid any delays. Sometimes it can take a few weeks for the Office of the Public Guardian to process LPA forms.
Our solicitors can help you through this process to make sure your forms are correct. Contact us today on 0370 1500 100 if you would like to discuss your situation.
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What Happens If I Don’t Make A Lasting Power Of Attorney And I Lose Mental Capacity?
If this happens, your family or friends can apply to the Court of Protection to appoint a Deputy to make decisions for you. They will usually appoint a solicitor as a Deputy so they can help make impartial decisions that are right for you.
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Questions on Deputyships
Who Can Be A Deputy?
You can be a deputy for a friend or relative. As a Deputy you’ll need to make decisions that are in the best interests of the person you’re responsible for.
If a loved one loses the mental capacity, you’ll need to apply to the Court of Protection to become a deputy for them. In some cases, you may need the Court’s permission to apply to become a deputy. This will depend on your relationship with the person who’s lost the mental capacity and what decisions you’re asking to make.
A deputy could also be a solicitor. The court appoints a solicitor if there:
Is no suitable family member or friend to make decisions in the best interests of the person needing help
Are large amounts of money to handle
Are very complicated decisions to make.
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What Does A Deputy Have To Do?
If you’re a deputy, you’ll need to make decisions for someone else about their finances, property, health or wellbeing. This is a huge responsibility.
When making a decision for your friend or relative as their deputy you must:
Make decisions that are in their best interests
Only make a decision if your friend or relative cannot make it for themselves
Only make the type of decisions that the Court gives you permission to make them
Keep in mind the guidance in the Mental Capacity Act 2005 Code of Practice
Make your decisions with a high standard of care in mind.
You may need to provide a report to the Court on a regular basis about the decisions you make and the reasons for them.
We have a Deputyship package that can guide you to make the right choices for the person you’re looking after. Find out more about our package on our website of contact us on 0370 1500 100 and we’ll talk you through how it works.
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What Decisions Can I Make As A Deputy?
The Court will tell you what decisions you can make. If you need to, you can apply to the Court for the power to make more decisions for your friend or relative. This usually happens if their situation changes, such as their health gets worse or they lose the mental capacity.
You must not make a decision if you believe that your friend or relative can make that decision themselves. There can be limits on what you can and can’t do as a Deputy – for example, you can’t:
Make a Will for your friend or relative
Make large gifts of their money
Put their money or property into your own name.
If you’re unsure of what decisions you are able to make, please contact our solicitors for advice on 0370 1500 100.
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Questions on Statutory Wills
I Am Deputy For My Relative And They Don’t Have A Will. How Can I Make One For Them?
If your relative doesn’t have the mental capacity to make their own Will, you can apply to make one for them through the Court of Protection. This is called a Statutory Will. You can’t make a Will for your relative without going through the Court of Protection, this makes sure your relative’s best interests are protected.
Our solicitors are experts at helping people make Statutory Wills . Contact our team today on 0370 1500 100 or fill out our online form and we’ll call you back.
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What Is A Statutory Will?
To make a normal Will, there are rules that say you have to be of ‘sound mind’. This means you have to understand:
What you own
What making a Will means
Who your loved ones are - even if you decide not to leave them anything.
If someone doesn’t have the capacity to make a Will themselves, you can apply to the Court of Protection to make a Statutory Will. You can only apply if you’re their Deputy or Attorney, or if you’re likely to inherit from them.
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How Do I Make A Statutory Will?
If you’re acting as Deputy, Attorney or are a potential beneficiary you’ll need to complete a number of application forms. You’ll also need to make a statement saying why you think the person you’re responsible for needs a Will or why their existing Will needs changing.
The Court of Protection will decide if your application and statement is appropriate.
Making a Statutory Will can be complicated but our solicitors can help make the process simple and straightforward. Contact our lawyers on 0370 1500 100 to discuss your situation.
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Questions on Trusts
How Do I Set Up A Trust?
A Trust can help you manage things like finances, property or compensation from a personal injury. To set up a trust, a solicitor will need to write a legal document called a Trust Deed for you.
If you’re responsible for someone who has received a large amount of compensation from a compensation claim, a Trust can help make sure it lasts over their lifetime. If they need medical care, Trusts can make sure there will always be enough to pay for these costs. In these cases, only money from compensation for a personal injury can go into the Trust account.
To create a Trust you’ll also need to choose at least two people to be Trustees. These people will be in charge of looking after the money in the Trust. The Trustees must be 18 or over and you can be one of the Trustees.
Find out more about Trusts and how they can help on our website . You can also call us on 0370 1500 100 to discuss to our solicitors can help.
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What Do Trustees Do?
As a Trustee, you and the other Trustees must set up a special account at a bank or building society known as a Trust account. The trust funds must go into that account and stay separate from any other money or accounts that belong to the person who the Trust is set up for.
The Trust account must be in the names of all the Trustees and should be called something that identifies who the trust belongs to.
You and the other Trustees must authorise all payments and transactions that the trust makes. You’ll have the legal power to manage the Trust account and handle the money for the benefit of the person you’re managing the Trust for.
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Can I Be A Trustee Of My Own Trust?
Yes, but you must also have at least one more Trustee. All Trustees have to agree about what will happen to the money in the Trust account. It’s important that you choose Trustees who will act in your best interests.
Sometimes you can choose a solicitor to be a Trustee. They can give impartial advice and make sure every decision is the best for you.
Many of our lawyers are Trustees so we have the detailed knowledge to help you manage your Trust in the best way for you. Contact us by filling out our online form and we’ll call you to discuss your situation.
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I Got Compensation For A Personal Injury And Am On Benefits, Do I Have To Give Up My Benefits?
You can only get state benefits if you have little income and savings. If you get compensation for a personal injury, the benefits agency will classify that money as savings that you own. Depending on how much compensation you have, you might lose some or all of your benefits.
To avoid this, you can put your compensation into a Personal Injury Trust. If your compensation is in a Trust, the benefits agency can’t classify it as savings and you can keep your benefits. That way, your benefits can cover day-to-day expenses like food and bills, and the Trust can pay for bigger expenses like medical care.
Your benefits are also protected if you have a Property and Affairs Deputy. Your compensation goes under the power of the Court of Protection so it won't be classed as savings.
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How Much Money Can I Have Outside The Trust And Still Claim Benefits?
At the moment, you (and your partner) can have up to £6,000 outside your Trust before you start to lose your state benefits.
If you keep all of your compensation in your Trust account and have less than £6,000 in any other accounts, your state benefits will not change. You and your partner can have £6,000 between you outside the Trust and still claim benefits.
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What Happens To Any Interest Earned By The Trust?
Any interest made by the Trust account has to stay in the Trust account.
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What Can Money In The Trust Pay For?
Money held in your Trust can pay for special items, such as mobility aids, accessible home adaptations, or rehabilitation equipment.
You mustn’t use Trust money to pay for ordinary living expenses such as
Food
Household fuel bills
Ordinary clothing and footwear.
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Will Money In The Trust Be Taken Into Account For Nursing Home Or Residential Fees?
No, Trust money is not looked at when the council works out whether you have to pay for your residential or nursing home fees.
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What Happens To Any Money In The Trust When I Die?
When you die, any money left in the Trust account will be part of your estate. That means it will go to your beneficiaries in your Will. These are the people you want to inherit from your estate. If you don’t have a Will, the Trust money go to your next of kin under the intestacy rules .
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