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Mental Health, Capacity and Court of Protection

Our mental capacity experience

We have an ageing population and mental health is today an oft-discussed topic. So it is that many of our clients, or their loved ones, have concerns surrounding mental capacity. 

Capacity is time and issue specific. Someone can have capacity to do one thing, but not another thing at any one time. This means that there can often be grey areas, while someone’s capacity fluctuates. Therefore, our team have to be alert to the principles of the Mental Capacity Act 2005, the legislation which governs this area.   

Our private client lawyers have a great deal of experience of making applications to the Court of Protection in relation to clients’ capacity challenges.   

Powers of Attorney

Lasting Powers of Attorney (or the old style Enduring Powers of Attorney, which are still valid if signed before October 2007) are documents which everyone should have. They are a sensible piece of planning for future eventualities. They are documents whereby a client appoints someone to deal with their affairs – either financial affairs or health and welfare decisions or both – and that appointment is designed to continue even if they subsequently lose mental capacity and become unable to make those decisions themselves. 

If someone does not have a Lasting Power of Attorney in place and they lack capacity to make one, then we can help with an application to the Court of Protection to appoint a “deputy” for that person. The Court has power to appoint a deputy to deal with financial affairs, or health and welfare decisions or both.   

Court of Protection applications

The other applications to the Court of Protection which we handle include:

  • Statutory Wills – an application to the Court to make a Will on behalf of someone who lacks mental capacity to make a Will themselves. 
  • Applications to the Court to ‘bless’ tax planning or gifts on behalf of someone who lacks capacity to make such decisions themselves. 
  • Applications relating to not just the elderly but also anyone else that may have capacity issues. 
  • Advice to Attorneys or Deputies regarding Court of Protection investigations. 

Solicitors for the Elderly

Our private client partners regularly act as attorneys or deputies for clients and our team includes lawyers who are members of Solicitors for the Elderly – an organisation which brings together experts in the various issues surrounding capacity and other challenges faced by older clients. 

Who to contact

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