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Court of Protection Services

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Specialists in mental capacity and court of protection

When caring for a loved one who lacks mental capacity, it is important that their best interests are always put first. As specialists in Mental Capacity Law and Court of Protection work we act as professional deputy, attorney and trustee. We have been managing the affairs of those that do not have the capacity to manage their own affairs through the Court of Protection for over 10 years.

Our expert Eve Carter manages the affairs of children and adults that have lost capacity through acquired brain injury and also injury at birth. We also deal with capacity loss through age related brain conditions and learning disabilities. We have experience at working closely with case managers, therapists, support workers, financial advisers and families to manage large clinical negligence awards. We also work closely with our clinical negligence and personal injury teams to provide a seamless service post injury. Our work is about solving problems and getting families back to as normal life as possible.

Meet Eve Carter, Head of Court Protection Services

Eve specialises in Mental Capacity Law and Court of Protection work and acts as a Professional Deputy, Attorney and Trustee. Her work is about solving problems and getting families back to as normal life as possible.

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Further information on specific subject areas is available below;

Mental Capacity
    The Mental Capacity Act 2005 came into force in October 2007 and it is legislation that sets out the law and legal remedies relating to delegated decision making. Mental Capacity is the ability to make your own decisions and people who are unable to make their own decisions would therefore be considered to lack capacity.
    A lack of capacity can be caused by illness, injury, learning disability or a mental health condition.
  • Everyone is assumed to have the capacity to make their own decisions, in order to show a lack of capacity there must be evidence to contradict this.
  • Everyone should be supported in their decision making and this includes the ability to make their own decisions even if by others standards it would appear unwise.
  • Where it appears someone is unable make their own decisions the test to establish capacity is broken down into two parts a functional test looking at the decision needing to be made and a diagnostic test to determine whether the lack of capacity is due to impairment or a disturbance of the function of the mind.
  • If the person lacks the capacity to make the specific decision, then the Mental Capacity Act allows for a decision to be made in the best interests of the person concerned by an authorised third party.
Deputyship
A deputy is a person appointed by the Court of Protection to make decisions relating to the property and affairs or the health and welfare of someone who is deemed unable to do this themselves because of a lack of capacity. A lack of capacity can be present because of brain injury at birth, as a result of an injury during lifetime or because of a degenerative condition later in life.
Property and Affairs Deputyship
    The appointed deputy manages the finances for the person who is unable to manage their own affairs and is authorised by the court to ‘stand in their shoes’ and make decisions on their behalf. The deputy is required to provide detailed accounts of their expenditure to the Court of Protection on an annual basis.
Appointment
    An application to the court of Protection is required to appoint a deputy and the court will require a degree of personal financial disclosure to ensure the appointment is made in the persons best interest.
    A deputy can be a family member or a solicitor as a Professional Deputy. Professional Deputies are usually appointed where there are complex assets and as a preference in cases where there are damages to be managed. Families also often prefer to appoint a neutral professional party as deputy.
Responsibilities
    The deputy is responsible for making all the decisions the person would usually take in respect of their finances including;
  • Managing bank account
  • Paying bills
  • Maintaining property, adapting, buying and selling.
  • Managing investments
  • Buying maintaining and taxing vehicles
  • Claiming benefits
  • Organising insurance
  • Tax returns
  • Employing care staff if required
  • Budgeting
  • Employing therapists
  • Arranging holidays
  • Employing other professionals to act where required
  • Ensuring a valid will is in place, making a statutory will application if required.
    We are happy to discuss what the best option would be in each individual case as it is a big responsibility to take on. It is important that you understand the nature of the roles and responsibilities.
Health and Welfare Deputyship Applications
    Health and Welfare Deputyship
    Application for a health and welfare deputy
    The court very much prefer to deal with medical decisions for adults on a decision by decision basis and are reluctant to impose a blanket authority where health and welfare decisions are concerned. There are however circumstances where a health and welfare deputyship may be granted. The court will look favourably on an application made by the parents of a child who does not have capacity and is unlikely to regain capacity. A health and welfare deputyship may be granted to allow them to continue to provide consent for defined ongoing dental and medical issues post 18.
Litigation Support
    Expert witness service for personal injury and clinical negligence solicitors
    Where a claimant has suffered a brain injury it may become apparent that they may not be able to manage their own financial affairs in the future. In high value claims litigators should be considering whether it is likely that a professional deputy may be required and they should ensure that they seek the opinion of a relevant expert in relation to this.
    In cases of high value, the court has indicated a preference for a professional deputy to be appointed because of the complexity of the financial management.
    The cost of appointing a deputy, their annual costs for administering the deputyship, the provision of a statutory will, if required, and contingency costs for the replacement of the deputy during the claimant’s lifetime are a recoverable head of loss in the claim and can form a significant part of the eventual damages. Expert evidence relating to the likely lifetime costs of appointing a professional deputy will be required in the form of an expert report from a professional deputy experienced in managing court of protection cases.  lt is important to take advice as soon as liability is admitted and the issue of capacity has been identified.
    It is often beneficial to have the capacity expert working alongside the litigator during the latter part of the litigation in cases where a deputy will definitely be needed. This allows a seamless transition for the family and allows the deputy to start instructing therapists and assisting the family as the interim payments are agreed. Often families have waited a long time for things to get a little easier and agreements to provide, for example, an adapted car or hydrotherapy can be a welcome relief as the litigation moves to a conclusion.
    Our expert witness service provides;
  • Assisting and working alongside the litigation solicitor during personal injury and clinical negligence claims.
  • Advising on all issues relating to capacity and court of protection costs.
  • an expert report detailing deputyship costs and disbursements for lifetime
  • advising in conference with counsel
  • appearing as an expert witness
  • acting as deputy in the later stages of the claim
Assistance for Appointed Lay deputies
    Where family members have taken on the responsibility of managing the financial affairs of a relative or child there are times when support will be needed. Navigating the Court of Protection can be challenging even for professionals so we appreciate that help and advice may be needed from time to time.
    I regularly advise deputies and attorneys on their roles and responsibilities.
    Preparation of annual deputyship returns
    A deputy for property and affairs is required to submit annual accounts detailing expenditure for the year to the court of protection.
    This is something I as a professional deputy am very experienced in doing. I am happy to go through your annual accounts with you and assist you in submitting the deputyship return if you require.
    Further applications
    The order appointing you as deputy will set out the authority that you have been given and generally it is fairly limited to routine transactions. Where you want to make decisions that are not in the original order a further application to court for approval will be required. You may wish to amend a will or make a statutory will or look at the feasibility of gifting funds that will require a gift application. If you a wishing to deal with property a trustee application may also be required.
Application for an attorney or deputy to make a gift
    Deputies and attorneys are generally not permitted to make gifts from another’s estate except for a few exceptions;
    An attorney acting under a registered property and affairs
Lasting Power of Attorney may make gifts
  • on customary occasions to persons (including himself) who are connected or related to the donor
  • to any charity that the donor might be expected to have made gifts but only if the value of the gifts is reasonable regarding all the circumstances and the size of the estate.
    • Customary occasions are defined as a birth, marriage or other occasion that families would traditionally make gifts.
      A Deputy’s powers to make gifts are stated in their deputyship order which will usually contain a clause such as;
      ‘The deputy may make provision for the needs of anyone who is related to or connected to (P) if he provided for or might be expected to provide for that person’s needs, by doing whatever he did or might have reasonably been expected to do to meet those needs.’
      In respect of this the deputy must make a decision in the best interest of the person and consider the affordability of making a gift.
      For all other transfers of funds an application should be made to court to seek approval. We can advise on any other gifting you wish to consider and where appropriate make the application for you to the court of protection.
      The kinds of gifts that would require approval would be larger transfers of money, loans, care payments to family members, any waived repayments of loans or interest, assistance in property transactions for family members, IHT planning arrangements and unusual transactions.
      If you are concerned that you have made an unauthorised gift of assets there are ways to deal with this. We can advise whether an application can be made to the court for retrospective approval.
      The court is however not tolerant of unauthorised gifts and will remove the deputy or attorney from their position and seek to recover any unauthorised transfers.
Application to make a statutory will
    A statutory will is a will made under the Mental Capacity Act 2005 for someone without the capacity to give instructions. A formal application needs to be made to the Court of Protection for the approval of the will and the judge will consider all supporting evidence before approval is granted. The official solicitor is usually instructed to ensure the viewpoint of the person that has lost capacity is considered. This is a complex court application but where it is necessary we can advise you on how to proceed and discuss the likely costs.
    Some of the circumstances in which a statutory will might be required are;
  • where the party has not made a will,
  • where an existing will is no longer appropriate. This could be because of a change in value of the potential estate or a change in family circumstances,
  • if the estate has suddenly increased in value because of a compensation award,
  • where beneficiaries have died
  • where beneficiaries have already received the gift from the will during lifetime.
  • Tax planning reasons
    In considering what the wishes of the person would be the court considers;
  • All the surrounding relevant circumstances
  • The persons past and present wishes
  • Any input the person is able to have
  • The persons beliefs and values
  • Views of connected third parties
  • Evidence of family tree
  • Financial position
    The will is then made to reflect what is to be considered as in the best interests of the person taking all relevant factors into account. Each case is very much considered on its own set of facts.
Applications to remove an incapable trustee
    If a trustee is having mental capacity issues generally, they would have retired from their position or the trust deed would have provided for their replacement. A lack of capacity does not in itself discharge the person from the role of trustee therefore if they remain in place action may be needed.
    There are limited powers for the person to have delegated their powers to an attorney under a power of attorney which survives incapacity but generally the trustee would need to be removed.
    The court of protection has powers under the Mental Capacity Act to authorise the removal and replacement of trustees in the following circumstances;
  • Where the person is a trustee of land with no beneficial interest
  • Where the person has a beneficial interest in the land and there is another trustee
  • Where the person has a beneficial interest and there is no other trustee
  • Where the person is the sole beneficiary
    In all these cases an application will need to be made to the Court of Protection to replace the trustee with an appropriate person to act in this role. There are many surrounding factors to be considered and we are happy to advise you in your individual circumstances.
Emergency Applications
    There are emergency protocols within the court proceedings to deal with applications that are urgent. Generally, in cases of genuine emergency the court can issue interim orders to assist in dealing with matters quickly and there are provisions for urgent hearings.
    The court will consider whether the case merits being fast tracked and if it justifies the prejudicial effect this may have on other parties with an interest. The court will need to be satisfied that it has enough evidence to make the decision.
    It is important to seek advice quickly so an application can be commenced as soon as possible I am happy to discuss any issues you may have.
    Examples of urgent applications would include a trustee application to replace a trustee that had lost capacity during a property sale, urgent statutory will where the person had limited life expectancy, urgent interim order to release funds to care for someone who has lost capacity.
Concerns regarding a current deputy or attorney
    At the end of litigation a professional deputy is often appointed where there are complex care and financial issues to deal with. Whilst it is hoped that the appointment works well for all concerned this is not always the case. We are happy to discuss any issues that you are having with your deputy and advise on outcomes that would be more harmonious. When a settlement is agreed the parties have envisaged that these relationships may need to be changed over the lifetime of the protected party and as such provision has been made for the costs of removing and appointing a further deputy within the settlement.
    We are also happy to assist where a lay person or family member has been appointed to deal with a relative’s affairs but has found things too challenging and a professional appointment may be a better idea. We are happy to discuss your requirements and help provide a workable solution for all.
    If you suspect that someone is abusing their position of trust as an attorney or deputy, or you are concerned that are not acting in the best interest of the person concerned we can advise on safeguarding and the best course of action to remedy this.
Professional Deputy Appointments
Professional Deputyship
    Acting as a deputy carries a great deal of responsibility and it can take significant time and energy to deal with the financial affairs of another. There are legal issues to deal with and reporting obligations to the Office of the Public Guardian who oversee the management of the persons’ affairs. Many family members soon feel out of their depth dealing with the Court of Protection and it is not uncommon for people to transfer to a professional deputy at a later date.
    A solicitor can be appointed to act as a professional deputy from the outset or later to replace a family member that has struggled and deal with all the financial management on a professional basis. The solicitor works with the person, their family and other professionals to manage their affairs and where the person is not able to be involved with the decision making then the solicitor will make decisions in their best interests.
    Where there are large damages awards or estates of substantial value it is often easier to have a neutral party managing the deputy affairs and can avoid family conflict. It is also largely accepted that a professional may be best placed to deal with such complexity.
    I act for adults and children with brain injuries, cerebral palsy, life limiting conditions, age related degenerative conditions and disabilities I am happy to discuss your individual case in detail. I am used to dealing sensitively with often complex family situations and challenges.
    I am happy to discuss your individual family situation and help you reach an outcome that works for everyone. Ultimately the solution should be one of mutual cooperation to provide the best life possible for the person concerned.
Management of damages awards
    I manage complex deputyship client affairs through the end of the litigation to conclusion and post settlement. I am experienced at working with case managers, therapists and investment advisers to manage large clinical negligence awards.
Management of later life affairs
    I am also very experienced with later life client’s needs in the transition through later life. I deal with those with life limiting conditions, dementia, and age-related capacity issues.
Contesting an application in the Court of Protection
    If you have been contacted in relation to Court of Protection proceedings, we are happy to discuss the case and advise you on the best way for you to respond.
    If you do not believe the application is in the best interests of the person that has lost capacity you may wish to discuss contesting the application. We can provide representation in respect of contesting deputyship and attorneyship appointments and also in respect of statutory wills and other applications. You may have information that the court has not had the opportunity to considering which may affect the decision they make. I am happy to discuss and explain the implication of any correspondence that you have received from the court.
Dealing with International Capacity Issues
International capacity issues
    Planning for capacity issues in later life is particularly important to ensure your wishes are honoured. You may wish to remain abroad and be cared for in your overseas home. The appointment of a professional attorney under a Lasting Power of Attorney with experience in managing care packages utilising case management companies that can source nursing care for you, should you need it, will ensure that your wishes are adhered to and the life that you are accustomed to remains in place. By making a power of attorney with a professional attorney you have the benefit of being able to detail all your wishes for the future and have a say in how you wish to be looked after should you lose the capacity to make your own decisions. Equally if your wishes are to return to the UK should you lose capacity this can be prepared for and the necessary preparations made.
    If a member of your family resident abroad has lost capacity but they own assets in the UK we can assist in making an application to the Court of Protection for the appointment of a deputy to enable the UK assets to be managed in their best interests.
Compensation Protection trusts
    If you have received compensation as a result of injury it is important to consider setting up a personal injury/compensation protection trust to protect any benefits you are entitled to now or in the future. For the first 52 weeks of receipt of a compensation payment legislation provides that it will be disregarded from being taken into account for any means tested benefit assessment. After 52 weeks any payment will be taken into account in the assessment of means tested benefits and result in loss of benefits if the damages exceed the income thresholds (currently £6,000). Any funds over this amount will be taken into consideration for means tested benefits and if your compensation is over £16,000 your entitlement to benefits will be lost entirely.
    This is avoided simply by setting up a Personal injury trust to hold the damages and following certain rules in respect of how the funds are managed.
    It is worth considering a professional trustee if you have received substantial damages.

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