What to do when you, or someone close to you, loses mental capacity as a result of a head injury or memory loss?

It is often overwhelming to know where to begin and exactly what to do when you or a family member has an injury or illness which affects your mental capacity. 

The Wolferstans Court of Protection Team works with a wide range of clients. This includes clients with acquired brain injuries as a result of an accident, to clients with a learning disabilities and clients living with dementia 

On a personal level, I know only too well how difficult it can be when a family member starts to lose their memory.  

When my Grandmother began to become overly forgetful my family and I realised that she had become very vulnerable. We were unsure what to do next and how to protect and assist her. Our first step was to take my Grandmother to the GP where she was diagnosed with dementia. My family stepped in to help as she could no longer manage her affairs by herself. 

Having had a personal experience of this situation, and now being a member of the Wolferstans’ Court of Protection Team, I realise how difficult it can be to know where to get the right advice and which direction to take.  

My family and I were not sure whether my Grandmother would need a Lasting Power of Attorney or whether we would need to apply for a Deputyship to formally manage her affairs.  

We started by researching the difference between a Lasting Power of Attorney and a Deputyship. 

Lasting Power of Attorneys (LPAs) 

We found that LPAs are documents which allow you (the ‘Donor’) to appoint a person or persons (the ‘Attorney/s’), to have a legal right to act on your behalf in relation to your affairs. It is your choice who to appoint, whether it be friends, relatives or a professional. 

You can only make an LPA whilst you have mental capacity and are still capable of making decisions for yourself. An independent person, known as a Certificate Provider, must sign the LPA to confirm that you have mental capacity. If a Solicitor is preparing your LPA they can act as your Certificate Provider. 

There are two types of LPAs: Property and Financial Affairs and Health and Welfare. 

A Property and Financial Affairs LPA can give someone the authority to deal with your finances, act as a litigation friend for you, and even buy or sell property on your behalf. 

A Health and Welfare LPA can give someone the authority to deal with and make decisions about your health care treatment, where you might live, and your care should you require it.  

Before your LPA can be used the document must be registered with the Office of the Public Guardian (OPG). The OPG is the public body that maintains the register of Attorneys and acts where there are concerns about the actions of attorneys. 

With your permission, once registered, your LPA can be used by your Attorneys on your behalf. They can do this by providing a certified copy of the LPA to all the institutions you are associated with i.e. banks and other asset holders. Your attorney can only use your health and welfare LPA when you can’t make decisions about your health and well-being. Should you lose mental capacity, your Attorneys are able to start, or continue, to use the LPA to deal with your financial affairs. 

My Grandmother was diagnosed to be in the early stages of dementia and the GP agreed that she had the capacity to make an LPA. My Grandmother chose to appoint two of her daughters who were willing and able to act for her. Had there been no-one willing or able to act, we would have had to explore the possibility of my Grandmother instructing a professional person such as a Solicitor to be appointed Attorney. At Wolferstans we have an experienced team which manages the financial affairs of a large number of clients. 

Deputyships 

If my Grandmother had lacked the mental capacity to make a Lasting Power of Attorney (LPA) it may have been necessary to apply to the Court of Protection for a Deputyship to manage her property and affairs. 

The first step in making a Deputyship application is formally establishing that the person to whom the application relates lacks capacity to manage their property and affairs. This is normally determined by a capacity assessment, which can be completed by an Independent Mental Capacity Assessor, qualified Social Worker, or other medical practitioner such as a Psychiatrist or Psychologist. 

If an individual is found to lack capacity, an application to the Court of Protection can be made to appoint a Deputy, or Joint Deputies. A Deputy may be a professional such as a Solicitor, or a relative or friend of the person who lacks capacity.  

The Court maintains a select panel of individuals who act as Deputies, recognising their skill and expertise in this area. The Panel nationwide consists of a small number of members and a Panel Deputy will be appointed by the Court if there is no-one else available to act. Samantha Buckthought, Senior Private Client Partner at Wolferstans, is a Panel Deputy.  The Court of Protection may appoint a Panel Deputy if the person to whom the application relates has no friends or relatives or where there is no-one deemed suitable to act.  

There are two types of Deputyship: Property and Financial Affairs and Health and Welfare. A Property and Financial Affairs Deputyship gives the appointed deputy immediate authority and responsibility to manage every aspect of your finances, and if justified to the Court of Protection and deemed in your best interests, buy or sell property on your behalf. A Health and Welfare Deputyship is less common. This gives the Deputy authority to deal with and make decisions in your best interests about your health care treatment, where you might live, and your care should you require it. 

The OPG oversees Deputyship by asking the Deputy, or Deputies, to complete an annual report detailing all income, expenditure and financial decisions that have been taken. This helps to ensure that the best interests of the individual are being adhered to. 

My family and I are very fortunate that my Grandmother’s finances and care have been relatively easy to manage with the support of her Attorneys and the wider family. That said, not all LPA and Deputyship applications and management are straightforward. If you require further assistance it is often advantageous to seek advice and guidance from a Solicitor to ensure that your actions as Attorney or Deputy comply with the restrictions of the Court of Protection. Whether it is information on gifting, care fees, complex financial issues, selling a property or completing an annual report, the Wolferstans’ Court of Protection Team can assist. 

The writer, Corrin Masters of Wolferstans Solicitors, can be contacted on 01752 663295 or email CMasters@wolferstans.com 

Alternatively, our Forces Law Team can be contacted on 0239 262 6888 or email info@forceslaw.com 

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