Emergency Power of Attorney: When and How to Obtain It

 

Chelsea Hamilton is a Chartered Legal Executive in our private client department. You can call Chelsea on 01323434414 or email chelsea.hamilton@stephenrimmer.com.

Accidents can happen to anyone at any time, and sometimes these accidents can result in individuals losing the ability to make their own decisions. In such cases, the Court of Protection in the UK steps in to protect the interests of these vulnerable individuals and make important legal decisions on their behalf. In this comprehensive guide, we will explore the role of the Court of Protection, the appointment of deputies, the concept of mental capacity, and the process of making legal decisions in the aftermath of an accident.

1. Understanding the Court of Protection

What is the Court of Protection?

When accidents or circumstances lead to individuals losing the mental capacity to make their own decisions, the Court of Protection comes into play. The Court of Protection is a specialist court in England and Wales that is dedicated to safeguarding the interests of vulnerable individuals who lack the ability to make decisions about their finances, compensation, health, and welfare. It was established under the Mental Capacity Act 2005 and has the authority to make important decisions on behalf of these protected individuals.

The Powers of the Court of Protection

The scope of the Court of Protection's powers is extensive and covers various aspects of decision-making and protection of vulnerable individuals. Some of the key powers of the Court of Protection include:

• Assessing an individual's mental capacity to make decisions
• Appointing Deputies to act on behalf of protected persons
• Granting permission for one-off decisions on behalf of protected persons
• Making decisions regarding statutory wills or gifts
• Determining cases involving deprivation of liberty under the Mental Capacity Act 2005

2. Mental Capacity and Its Implications

Defining Mental Capacity

Mental capacity refers to an individual's ability to make sound decisions about their everyday life as well as important life-changing matters while understanding the implications of those decisions at the time. According to the Mental Capacity Act 2005, a person lacks capacity if they are unable to make decisions for themselves "because of an impairment of, or a disturbance in the functioning of, the mind or brain." This means that if a person is unable to understand information, use it to reach a decision, or communicate their decision, they are considered to lack mental capacity.

Reasons for Lack of Mental Capacity

There are various reasons why someone may lack mental capacity, including old age and dementia, extensive learning difficulties, serious illness, and personal injuries. Serious injuries, especially those affecting the head or brain, can lead to a loss of mental capacity. In such cases, the Court of Protection may appoint a Deputy to make decisions on behalf of the individual during legal proceedings or following a compensation payout.

3. The Appointment of Deputies

What is a Deputy?

A Deputy is an individual who is formally appointed by the Court of Protection to make decisions on behalf of a protected person. They act as the legal representative for the protected person and carry out their responsibilities in accordance with the Court's Deputyship Order and the Mental Capacity Act. Deputies can be close relatives, such as spouses or parents, or professionals such as solicitors. The role of a Deputy is crucial in managing the financial and welfare affairs of the protected person.

Types of Deputies

There are two main types of Deputies: property and financial Deputies, and health and welfare Deputies. Property and financial Deputies handle matters related to financial decisions, selling or buying property, claiming benefits, and ensuring the protected person's financial needs are met. Health and welfare Deputies make decisions about where the person lives, their daily care, medical treatment, and care arrangements. The Court of Protection specifies the scope of a Deputy's authority in the Deputyship Order.

Roles and Responsibilities of a Deputy

Once appointed, a Deputy has a range of responsibilities and duties to fulfil. Some of the key roles and responsibilities of a Deputy include:

• Making financial decisions and managing the protected person's property and financial affairs
• Ensuring the protected person's financial needs are met, including paying bills and providing for dependents
• Making decisions regarding the protected person's health and welfare, including care arrangements and consent to medical treatment
• Regularly assessing the protected person's mental capacity to make decisions
• Seeking the Court's approval for decisions outside the scope of the Deputyship Order

4. Decision-Making Process in the Court of Protection

Assessing Mental Capacity

One of the primary functions of the Court of Protection is to determine whether an individual has the mental capacity to make specific decisions. This assessment is crucial in establishing whether a person can make decisions independently or requires the assistance of a Deputy. The Court follows the guidelines set out in the Mental Capacity Act 2005 to assess an individual's capacity and make decisions in their best interests.

Making Statutory Wills and Gifts

In cases where an individual lacks the mental capacity to manage their finances and has not made a will, the Court of Protection can make a will on their behalf. This is known as a statutory will, which ensures that the individual's best interests are considered. To ensure the proposed statutory will is appropriate, a draft is submitted to the Court for approval, taking into account the protected person's circumstances and wishes.

Deprivation of Liberty under the Mental Capacity Act 2005

The Court of Protection has the authority to make decisions regarding the deprivation of liberty. If it is deemed necessary to deprive an individual of their liberty for their own safety or the safety of others, an application must be made to the Court of Protection. The Court carefully assesses the circumstances and determines whether the deprivation of liberty is in the best interests of the individual.

5. The Importance of Lasting Power of Attorney

Planning Ahead with Lasting Power of Attorney

To avoid the need for the Court of Protection's intervention in the event of losing mental capacity, individuals can plan ahead by setting up a Lasting Power of Attorney (LPA). An LPA allows individuals to choose someone they trust to make decisions on their behalf if they are unable to do so in the future. By appointing an attorney through an LPA, individuals have control over who will make decisions and can ensure their best interests are protected.

Benefits and Limitations of Lasting Power of Attorney

Having a Lasting Power of Attorney provides several benefits, including peace of mind knowing that decisions will be made by someone chosen by the individual. It also avoids the need for the Court of Protection's involvement and streamlines the decision-making process. However, it is important to note that LPAs have limitations, such as the need for mental capacity at the time of creation and the potential for abuse if the appointed attorney does not act in the individual's best interests.

6. The Court of Protection and Compensation Claims

Involvement of the Court of Protection in Personal Injury Claims

In cases where an accident results in a person losing mental capacity and they wish to pursue a personal injury claim, the Court of Protection becomes involved. The Court may appoint a Deputy to act on behalf of the injured person during the legal proceedings or after the compensation has been awarded. The Deputy becomes the point of contact for the personal injury solicitor and ensures that the compensation is managed appropriately in the best interests of the protected person.

Role of Deputies in Compensation Claims

Deputies play a crucial role in compensation claims by ensuring that the protected person's financial and welfare needs are met. They may assist in securing compensation on behalf of the protected person and make decisions regarding the use of the funds. In cases where a protected person lacks the mental capacity to manage their finances, the Deputy may set up a personal injury trust to protect the compensation from being means-tested and accessed incorrectly.

Setting Up a Personal Injury Trust

In situations where a personal injury compensation award needs to be protected, a personal injury trust can be established. A personal injury trust ensures that the compensation is ring-fenced and not taken into account for means-tested benefits or care assessments. It provides a safeguard for the protected person's financial future and allows them to benefit from the compensation without it affecting their eligibility for support.

7. Applying for Court of Protection Assistance

How to Apply to the Court of Protection

If an individual requires assistance from the Court of Protection, various steps need to be followed to make an application. The application can be made online through the official government website or by contacting the Court of Protection directly. It is important to provide all relevant information and supporting documents to support the application and ensure that the Court has a comprehensive understanding of the situation.

Short-term and Long-term Help

The Court of Protection offers both short-term and long-term assistance depending on the individual's circumstances. Short-term help may involve appointing a Deputy for a limited period to make decisions on behalf of the protected person, such as managing their finances while they are unable to do so. Long-term help may involve appointing a Deputy for ongoing decision-making, covering financial and welfare matters, when the protected person lacks the mental capacity to make these decisions themselves.

8. Frequently Asked Questions

Who can Become a Deputy?

Anyone can become a Deputy, although the Court of Protection prefers to appoint family members or close friends who have a personal connection to the protected person. If no suitable family member is available, a professional, such as a solicitor or accountant, may be appointed as a Deputy. The key consideration is that the appointed Deputy acts in the best interests of the protected person and has the necessary skills and knowledge to fulfil the role.

Can Multiple Deputies be Appointed?

Yes, the Court of Protection allows for the appointment of multiple Deputies. They can act jointly, meaning all Deputies must agree on decisions, or jointly and severally, meaning Deputies can make decisions individually or together. However, the Court generally discourages the appointment of more than three individuals as Deputies to avoid complexities, increased costs, and potential delays.

What are the Limitations of a Deputy's Powers?

Deputies have certain limitations on their powers. For example, they cannot make decisions regarding life-sustaining treatment, create or amend a will, or make significant gifts using the protected person's money. Deputies also cannot hold money or property in their own name on behalf of the protected person. Any decisions made by the Deputy must be in the best interests of the protected person and aligned with the principles of the Mental Capacity Act 2005.

9. Expert Advice and Support

Seeking Legal Guidance and Support

Navigating the Court of Protection process and understanding the legal implications can be complex. It is essential to seek legal guidance and support from experienced professionals who specialise in Court of Protection matters. Solicitors and legal advisors can provide personalised advice, assist with applications, and ensure compliance with the relevant laws and regulations. They can also help address any concerns or disputes related to the decision-making process.

10. Conclusion

When accidents result in individuals losing their mental capacity, the Court of Protection plays a vital role in protecting their interests and making decisions on their behalf. With the appointment of Deputies and the involvement of the Court, vulnerable individuals can receive the necessary support and guidance to manage their finances, welfare, and legal matters. Planning ahead with tools like Lasting Power of Attorney can also provide individuals with a sense of control and peace of mind. Seeking expert advice and support is crucial to navigate the Court of Protection process effectively and ensure the best outcomes for those in need.