Powers of Attorney Solicitors

A  Lasting Power of Attorney  for Health and Welfare is a legal document that empowers a chosen representatives (Your Attorneys) to make decisions regarding your health and well-being if you’re unable to do so. This includes choices about medical treatment, care options, and living arrangements. It ensures your preferences and best interests are upheld in situations of incapacity or severe illness, providing peace of mind for you and your loved ones.

The Court of Protection make decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’). which affect people who do not have the mental capacity to make important decisions themselves.

The Court of Protection are responsible for:

• deciding whether someone has the mental capacity to make a particular decision for themselves
• appointing deputies to make ongoing decisions for people who lack mental capacity
• giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
• handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
• making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
• considering applications to make statutory wills or gifts
• making decisions about when someone can be deprived of their liberty under the Mental Capacity Act

The Court of Protection’s powers are defined by Mental Capacity Act 2005. The Act has 5 key principles: –

1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
2. People must be supported as much as possible to make a decision before anyone concludes that they cannot make their own decision.
3. People have the right to make what others might regard as an unwise or eccentric decision.
4. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
5. Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms or action, or whether there’s a need to decide or act at all.  In essence any intervention should be proportional to the particular circumstances of the case.

Statutory Wills are made by the Court of Protection on behalf of an individual (‘P’) who has lost capacity. The court’s authority is derived from the Mental Capacity Act 2005 (MCA 2005).

When considering whether a Statutory Will can be made on behalf of an individual, their lack of capacity in respect of the making of a Will must be addressed.

At Ridley & Hall we have an experienced team to help you to identify the most suitable course of action for your loved one. If the person lacks mental capacity, and you do need to apply to the Court of Protection, we can advise you on:

• What information the court will require if you make an application to act as a deputy for someone who lacks mental capacity.
• The documents you will need to complete when making an application – we can help to fill in the forms if you would like.
• Your responsibilities if the court appoints you as a deputy.
• Why the Mental Capacity Act 2005 and its Code of Practice is important and what deputies need to know about them.
• Making gifts when you are a deputy.
• The deputy’s inherent duty to maximise their client’s income.
• How to prepare and complete deputyship accounts and reports.
• The process for making a Statutory Will if one is needed.
• Any other property and financial issues which affect the person who lacks mental capacity.