We spoke to Claire Barnes in the Court of Protection team about the work that her team does.
What is meant by capacity?
Once someone loses capacity, they may lose the ability to make certain decisions for themselves, including those relating to their financial and property affairs. Capacity can be lost for a number of reasons be it through dementia, as a result of a serious brain or birth injury or through illness. Whilst someone may lack capacity to make certain decisions, it is possible that they can retain the capacity to make others.
What happens when someone loses capacity?
Where it is likely someone will lose capacity, they may choose to register a Lasting Power of Attorney (LPA), previously an Enduring Power of Attorney (EPA). An LPA is made before one loses capacity and is a legal document allowing the person likely to lose capacity to nominate someone (an attorney) they trust to make decisions on their behalf.
Whilst an LPA must be made before capacity is lost, an LPA for property and financial affairs can be used whilst the person still has capacity. On the other hand, LPAs relating to health and welfare matters will only come into effect when the person it relates to ceases to have capacity.
LPAs have now replaced EPAs. Whilst no new EPAs can be made, they are still able to be registered provided they were made and signed before 1st October 2007.
What if someone has lost capacity but there is no LPA/EPA in place?
Understandably, it is not always possible to anticipate somebody losing capacity. Where capacity has already been lost and no LPA has been made, an application can be made to the Court of Protection to appoint a Deputy to make these decisions instead. The Court will decide whether the person in question has the capacity to make their own decisions and, if not, who should be appointed to act as Deputy.
Who can be appointed to act as Deputy?
The Court can appoint either Lay Deputies, usually a friend or relative (provided they are aged 18 or over and have the mental capacity to be a Deputy), or a Professional Deputy. Here at Jackson Lees we are appointed to act as Professional Deputy for a number of clients. Additionally, we help Lay Deputies with the application process for their appointment.
What happens when a Deputy is appointed?
When a Deputy is appointed, a Court Order will be obtained stipulating the Deputy’s specific powers in relation to the person lacking capacity. They can only make a decision for which the person does not have capacity and must continually assess whether the person in question has capacity to make each decision as it arises. A Deputy is obliged to act in the best interests of the person they are acting on behalf of and are supervised by the Office of the Public Guardian.
What happens if a Deputy does not act in the person lacking capacity’s best interests?
The Court of Protection has the power to remove a Deputy or change the decision-making authority they have. If a Deputy is removed for abusing their power, the Court may appoint a panel Deputy, a solicitor chosen from their list of approved professionals. Jane MacGregor, the Head of our Court of Protection Department and a Director here at Jackson Lees, is a panel Deputy within the North West and regularly acts as panel appointed Deputy on various matters.
What happens if the person I am acting for dies?
The powers of both Attorneys (appointed under an LPA or EPA) and Deputies (appointed by the Court of Protection) cease once the person they are appointed to act on behalf of dies. The authority to make decisions will then pass to the executors of the deceased’s estate.
If you would like further information or guidance on any of the above matters, our highly professional and experience Court of Protection team are here to help. Call us on 0151 282 1700.