Vulnerable Adults, Attorneys and the Court of Protection
Vulnerable Adults, Attorneys and the Court of Protection
There are sadly an increasing number of adults who lack mental capacity to manage their own financial affairs or make important life decisions.
When mental capacity is lost (e.g. through dementia or a serious accident) ideally a trusted family member, friend or professional (such as a solicitor or accountant) will have been appointed by a Lasting Power of Attorney or Enduring Power of Attorney, registered with the Office of the Public Guardian.
Where there is no LPA or EPA, the Court of Protection can appoint a Deputy to take on a similar role.
An Attorney must follow any specific instructions or guidance in the LPA or EPA itself, while the Mental Capacity Act 2005 and Code of Practice require Attorneys and Deputies always to make decisions in the person’s “best interests”.
But what if there is uncertainty or disagreement about what is in the person’s best interests?
Or what if there are concerns that an Attorney or Deputy is not acting in the person’s best interests?
What if there is no Attorney or Deputy, but there are fears about a vulnerable adult being taken advantage of?
In any of these circumstances, our Will, Trust and Inheritance Dispute Team can offer advice and representation to navigate the issues.
Sometimes that may involve signposting to the appropriate authorities such as the Local Authority’s Adult Social Services Department, or the Office of the Public Guardian, who have safeguarding duties and powers to intervene in appropriate cases.
On other occasions it may be appropriate to make an application in the Court of Protection, which can make a wide range of decisions and orders relating to a person’s property and financial affairs or their health and welfare needs.
The circumstances in which the Court of Protection may be asked to make decisions can include:-
- Where there is disagreement about where a person should live (e.g. at home with a support package or in a residential care home)
- Where there is a need to schedule contact arrangements due to difficulties within the family
- Where there is no EPA or LPA, to appoint a Deputy to look after a person’s property and financial affairs
- When there are concerns about the Deputy or Attorney, to investigate and decide whether to order their replacement and/or asset recovery
- Where significant or contentious financial decisions are needed, such as whether to sell the family home
- When an Attorney wishes to make sizeable gifts on behalf of the person lacking capacity, for example towards a son or daughter’s wedding or towards a deposit for a house
- To make a Will (known as a Statutory Will) for a person lacking capacity
Applications may be made to the Court of Protection by an Attorney, Deputy, family member or anyone else concerned about a person’s best interests.
If you have any questions, or if you wish to make an enquiry online please click the 'contact us' button, or alternatively you can call us on 0114 266 6660.
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