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Court of Protection Finance

If you (or your loved ones) need support or advice in managing your financial affairs, or if you would like to make arrangements regarding decisions in the future, we can help you.

We specialise in dealing with applications to the Court of Protection for decisions relating to property and financial affairs. We also manage the financial affairs, to include large awards of compensation, of a wide range of clients whose mental capacity has been affected by various reasons to include dementia, learning difficulties, cerebral palsy, brain injury and clinical negligence. We work closely with litigation lawyers with specialist knowledge in these areas.

The Private Client Department can advise on all financial aspects of Court of Protection issues, and the Office of the Public Guardian, including:

  • Dealing with applications for the appointment of a Property and Affairs Deputy
  • Managing financial affairs as professional Deputies
  • Assisting lay Deputies and advising on their roles
  • Dealing with applications for the appointment of Trustees to assist with the sale of jointly owned properties
  • Statutory Will applications
  • Preparing annual Deputy Reports
  • Preparing and registering Lasting Powers of Attorney
  • Registering Enduring Powers of Attorney
  • Setting up and administering Personal Injury Trusts

Role of a Property and Affairs Deputy A Property and Affairs Deputy is responsible for the following duties:

  • Making decisions of a financial nature for the person on whose behalf they have been appointed to include managing bank accounts and investments, seeking appropriate advice
  • Selling and buying property and arranging adaptations
  • Claiming benefits and all other income
  • Paying bills and ensuring that the person’s financial needs are being met
  • Agreeing a budget for day to day living costs
  • Making decisions regarding significant capital expenditure within the constraints of the Court Order
  • Liaising with care managers, case managers and support workers to ensure thatpersonal care needs are being met
  • Preparing annual Deputy Reports
  • Ensuring that annual tax returns are submitted where appropriate
  • Visiting the client at home (at least annually)
  • Acting under the powers granted by the Mental Capacity Act 2005 and Code of Practice and above all, acting in the best interests of the client at all times

Support for Lay Deputies

We can help with applications to the Court of Protection for the appointment of a family member or friend as a lay Deputy. We can also assist the newly appointed Deputy to open a deputyship bank account, prepare annual deputy reports and with the ongoing general management of their loved one’s financial affairs.

Professional Deputies

We also act as professional Deputies and our aim is to offer a professional and friendly service. As professional Deputies acting for a wide range of clients, we have vast experience in all of the duties and responsibilities involved in the management of a client’s financial affairs. We are answerable at all times to the Court of Protection and ensure that we manage our client’s financial affairs responsibly and in the best interests of the client.

If the client has been awarded compensation, the fund needs careful management and planning to ensure that it is spent properly on the client’s care needs, rehabilitation and long - term security. This involves close liaison with carefully chosen financial advisors who specialise in the investment of awards of compensation.

Family members can find it hard to act as a Deputy as this role may have an impact on their personal relationships. This role can be a burden to some family members and involves extra work and pressure. We are happy to be appointed to act as a professional Deputy which takes the pressure away from the family. There are professional fees involved where a professional Deputy is appointed, but these are assessed by the Court annually to ensure that they are reasonable. These costs can also be claimed within a compensation award.

Wills and the Court of Protection

We assist clients in making a Will if they have the requisite capacity to do so. There is a different capacity test when making a Will to that of managing financial affairs and just because a person is a client of the Court of Protection, it does not mean that they cannot make a Will. We can arrange for a client to see their GP or other medically qualified professional and obtain
a medical report confirming capacity, which can then be held with their Will once this has been made.

Statutory Wills

If the client does not have the capacity to make a Will, we can apply to the Court of Protection for a “Statutory Will” for them. This may be necessary if they have not already made a Will prior to losing capacity, or where they have made a Will but this needs to be changed, perhaps due to a change in personal or financial circumstances.

When making such applications, we liaise with the person’s family, the Official Solicitor and the Court of Protection until a final Will has been agreed between all parties involved which takes into account the person’s known wishes or feelings. In particular, if anyone in an earlier Will is adversely affected by the new Will, they must be served with the  application.

In a very small number of cases, where an agreement cannot be reached, there will be a hearing and the contents of the Will are decided by a Court of Protection Judge.

Lasting Powers of Attorney

A Lasting Power of Attorney (“LPA”) allows you to plan ahead and prepare for the possibility that at some point in the future, you may be unable to make decisions for yourself due to lack of mental capacity. This could be due to an accident, physical ill-health, mental illness, or neuro-degenerative disease. Whatever the reason, an LPA allows you to:

  • Choose someone you trust to make decisions in your best interests should you no longer be able to make those decisions
  • Give them either limited or unlimited power to deal with all or specific areas of your life If you don’t have an LPA and you do lose mental capacity, the Court of Protection will appoint a Deputy on your behalf. This is a lengthy process and involves initial and ongoing costs.

LPAs allow you, the “Donor”, to appoint one or more persons of your choice to act as your Attorneys. LPAs specifically deal with two areas:

  • Property and Financial Affairs – this type of LPA allows your Attorneys to make decisions about your financial affairs, to include how your money should be spent and whether your property should be sold.
  • Health and Welfare – this type of LPA allows your Attorneys to make decisions about your health and personal welfare. This includes decisions such as where you live, and,if appropriate, what medical treatment you do or do not receive.

The LPA, once registered with the Office of the Public Guardian, can be used immediately or at some point in the future, should you become incapable of making decisions yourself.

By making an LPA, you can ensure that persons of your choosing will be able to make decisions for you in the event that you become incapable of making decisions in the future,rather than the Court appointing someone that you may not have chosen to make decisionsfor you.

We can draw up the forms for you and register these with the Office of the Public Guardian on your behalf.

If you have a loved one who no longer has the capacity to make a Lasting Power of Attorney but needs someone to manage their affairs, please contact us and we can advise upon making an application to the Court of Protection for a Property and Affairs Deputy to beappointed on their behalf

Personal Injury Trusts

When a person is awarded compensation for a personal injury, there may be advantages in placing the compensation award in a trust, known as a Personal Injury Trust (PIT).

If you have been awarded compensation for a claim for personal injury and that money is paid to you, you could lose your entitlement to means-tested benefits or receive assistance from the Local Authority towards your care costs. Means - tested benefits include Income Support,Income -based Jobseeker’s Allowance, Pension Credit, Income-related Employment and Support Allowance, Housing Benefit and Council Tax Benefit, and Social Fund Payments. These payments could be reduced or may cease altogether if your compensation award is paid to you directly.

To avoid this, your compensation award could be placed into a PIT. This means that, rather than the compensation being placed directly into your bank account, it is held by other people on your behalf. These people are called “Trustees.” The Trustees must look after the compensation award on your behalf, and they must act entirely in your interests.

You can choose your own Trustees and they should be people that you trust, such as a partner, close family member or friend. People sometimes choose a Solicitor and a family member although a Solicitor would make a charge for the service.

By placing your compensation award into a PIT, this means that the compensation award is not taken into account when you are being assessed to claim either means - tested benefits or assistance from the Local Authority towards your care costs.

Means - tested benefits are calculated according to how much money and other assets that you have. As a general rule, if your total savings (to include those of your partner) are more than £6,000.00, your benefits can be affected. There are different rules that apply to different benefits. Your compensation award would not be included in the calculation provided it is
held in a PIT.

Your Trustees are responsible for managing the trust fund on your behalf, ensuring that it is invested and distributed in accordance with their powers under the trust deed. They must keep records of all trust dealings. They can make payments from the trust and normally do so by drawing cheques
from the trust bank account on your behalf.

If a Trustee fails to carry out his or her duties, they may be in breach of the trust and can be replaced. You have the ability to change your Trustees should you wish to do so or the Court could make an Order to remove and replace your Trustees if necessary. In addition, you can terminate the trust at any time, and the compensation would then be returned back to you.

Get court of protection help

If you need help dealing with a court of protection application then go to our main court of protection page.