Have you ever wondered what happens when you lose mental capacity and cannot deal with your own affairs?
Do you have a relative that no longer has the mental capacity to make their own decisions and you wish to make decisions for them?
If you have Power of Attorney then someone else can assist you and deal with matters on your behalf. However, without a Power of Attorney, nobody has any legal authority to assist you.
Under Data Protection laws, nobody can access your bank accounts, obtain your pension, deal with paying your bills or deal with any financial matters on your behalf without the legal authority to do so. This means that without a Power of Attorney your affairs will just mount up and the red letters may start coming.
Without a Power of Attorney, the only way in which someone can take over your financial affairs would be by applying to the Court of Protection for a Deputyship Order.
If someone loses mental capacity and is no longer able to deal with their own affairs then without a Power of Attorney nobody has the legal authority to step in.
In these circumstances, in order to take over the mentally incapable persons financial affairs, it would be necessary to apply to the Court of Protection for a Deputyship Order.
A Deputyship Order is an Order from the Court allowing someone else to act on behalf of a mentally incapable person. The person authorised to act is known as a Deputy. This Order can then be shown to all financial institutions and authorises them to deal with the appointed Deputy in all matters going forward.
A Deputy must be over 18 years old and is usually a close family member but can be a friend or even a professional, such as a solicitor.
A Deputy can be appointed to act in relation to someone’s finances (known as a Deputy for property and affairs) or in relation to their personal welfare.
Any Deputyship Order gives clear directions as to what the Deputy can and cannot do.
A Deputy has a very important role to perform and certain formalities must be followed to ensure that they are carrying out their duties correctly.
Being a Deputy is a very important role with many duties and obligation. You should always seek professional advice before taking on the role of Deputy to ensure that you understand your obligations.
When a property is held in joint names both people can sign the contract and agree to a sale - but what if one person loses their mental capacity?
In these circumstances, an application needs to be made to the Court of Protection (COP) to have a second Trustee appointed to act on behalf of the mentally incapable person and sign on their behalf to agree the sale.
Making a Will is a priority. A Will ensures that when you die your estate passes to who you want, how you want. However, in order to make a Will, you must have the mental capacity to do so.
What happens if someone has lost mental capacity before making a Will, or they have made a Will but its years out of date and would not reflect their wishes?
What happens if someone has suffered a serious brain injury or illness which means they do not have the mental capacity to make a Will?
In these circumstances, it is possible to make an application to the Court of Protection to make, or change, a Will on behalf of someone who is not mentally capable of doing this themselves.
The application process is quite detailed and can take some time to complete. The process required you to submit various forms to the Court detailing the person's personal circumstances, their family arrangements, details of their finances, details of any former Wills… the list goes on.
In addition to the, you may be required to notified certain people of what you are doing, such as the person family, or beneficiaries of their existing Will. It may even be necessary to attend a hearing at Court to discuss the application in person.
An application to the Court of Protection can be complex and time-consuming, and we would always advise that you take advice on making such an application.
When someone suffers a Brain Injury or is born with a brain injury it is a very difficult time. You often don't consider the financial impact this can have as the medical requirements take priority.
When there is a brain-injured patient it is essential to ensure that their financial affairs are in order to ensure that their needs can be met.
Here at Taylor Bracewell, we can help you through the process of making a Deputyship Order Application to ensure that things run as smoothly as possible and to allow you to concentrate on the personal needs of the injured party.