Court of Protection is probably a term that a lot of people are unfamiliar with but it basically boils down to this: we can advise and assist with life planning and financial management for anyone who doesn’t have the mental capacity to make decisions about these on their own. This is often due to a serious injury, the result of medical negligence or a degenerative disease.
We’ve been helping accident victims manage their affairs for over 25 years so we’re in the unique position to understand their needs, their fears, their worries, and we have the knowledge and connections to help get the best results for all concerned. So, if you or your loved one need help with protecting your assets and making the right decisions regarding money matters in the face of mental impairment following an injury or debilitation, there’s no one better positioned to help.
So how does it work?
Every client and every situation is unique. That’s why there’s no fixed solution. So what we initially offer is a free one-hour consultation where we sit down with you and identify all the key issues affecting you and your family and how we can best tackle them. There are a lot of different financial and asset protection methods out there, so we’ll work closely with you to determine which one would be the best for your needs. The main areas are:
- Personal Injury Trusts and Trustees
- Powers of Attorney
- Court of Protection and Deputyships
Why choose Fletchers?
Our team is made up of fully qualified solicitors, all with a background inserious brain and spinal injury cases. So they know what they’re talking about. They’ve all dealt with large compensation claims. They’ve all advised clients in similar situations to you. And they all know what to do in situations where the client or the client’s loved one is sufficiently mentally challenged that they can’t make decisions about their finances or longterm living arrangements for themselves.
We also know only too well how daunting and overwhelming it can be, having to sort out property and affairs following a major life-changing event. In situations like these, expert, understanding help can make all the difference. Even if you just want to plan for the future should anything happen. This is where Power of Attorney comes in.
Or we can actually take over the full management of your financial affairs under the role of Professional Deputy, giving you or your loved one the breathing space to concentrate on your own personal welfare and rehabilitation without having to worry about your financial affairs.
Personal Injury Trusts and Trustees
Protecting your compensation
A Personal Injury Trust (also known as a P.I. Trust or a Special Needs Trust) is a way of protecting your entitlement to means-tested benefits, both now and in the future. Which basically means that if you’re receiving a significant personal injury compensation award – or even an interim payment of that to tide you over – some, if not all, of your award can be ring fenced so that your means-tested benefits entitlement will not be affected.
Personal Injury Trusts require a minimum of two trustees who manage the trust on your behalf (if you like, you can appoint yourself as your own trustee). You can appoint a Lay Trustee who is someone you know and their job is to act in your best interests, using the money from your trust funds for your benefit only. That way, you can be sure that your compensation is being well looked after. If you can’t think of anyone suitable enough for this responsible role, a Professional Trustee can be found to do the job for you.
Where do we come in?
Our small team of dedicated solicitors will be able to quickly decide if you could benefit from a Personal Injury Trust.
We can guide you through the whole process and help you pick out your trustees. And if you don’t think anyone you know is up to the task, we can take on the job of Professional Trustee for you.
Either way, we know who to talk to – and how to talk to them – to make sure that you still get all the benefits you’re due even if you have a large compensation award.
Powers of Attorney
What does this all mean?
While you have the mental capacity to make decisions for yourself, you can pick someone to make important decisions on your behalf. This person is called an Attorney. (And your appointed Attorney can continue to make decisions for you even if you become unable to do so yourself.)
So what can he or she do for you? Your Attorney is dutybound to:
- make decisions on your behalf;
- only make decisions that the Power of Attorney allows him or her to make;
- not pass on the powers to anyone else unless authorised to do so;
- keep your affairs confidential; and
- make sure all decisions benefit you and not them.
General Power of Attorney
There may be times, for whatever reason, that you feel that you can’t deal with your finances without some help. For example, you might need someone to act on your behalf in your absence, or some physical incapacity prevents you from getting to and signing documentation.
In which case, a General Power of Attorney could be the perfect solution as it would allow you to ultimately remain in control of all your financial management even if you’re not physically doing it yourself on a day-to-day basis. Your appointed Attorney would be allowed to deal with all your finances in line with your wishes. So he or she would be able to perform such duties as collecting your pension, benefits or any other income, paying your bills, completing your tax returns and dealing with your bank.
A General Power of Attorney is available for anyone who can retain sufficient mental capacity (as defined by the Mental Capacity Act of 2005) to deal with their own property and affairs and who might wish to appoint someone to act as their financial representative. This doesn’t have to be a permanent arrangement – just as long as you need it to be.
If you grant us General Power of Attorney, we will draft up the necessary legal documentation for you which will then be delivered, signed and witnessed as a Deed. We can even deal with the creation of a General Power of Attorney for the cases where the Donor is unable to sign for himself.
Lasting Power of Attorney
There might be an instance where you’d like to put something a bit more permanent in place. A Lasting Power of Attorney offers the same benefits and legal certainties of a General Power of Attorney but – as the name suggests – it’s a more longterm solution. With one of these, you can be assured that you’ve got all the necessary safeguards in place (i.e. your chosen Attorney or Attorneys who have been registered with the Office of the Public Guardian) and that your finances will be fully managed should you become mentally incapable of doing it yourself.
Obviously planning for something like this – whether you know it’s coming or not – is a very difficult decision to make. That’s why we’re to help as much as we can. We’ll take as much anxiety and apprehension out of the equation as we can. With your Lasting Power of Attorney in place, you can plan in advance for matters such as:
- the decisions you want to be made on your behalf if you lose the mental ability to make them yourself;
- who you want to make these decisions on your behalf as your Attorney;
- whether you want your Attorney to act for you once the Lasting Power is registered or if you lose the capacity to act for yourself;
- how you want your chosen Attorney or Attorneys to make these decisions.
Mental incapacity can arise at any time as a result of sustaining an injury in an accident, or through medical negligence or as the result of illness, including degenerative diseases often associated with old age. If you wish to retain some kind of control over your finances in such a situation, then a Lasting Power of Attorney is just what you need. It will also confirm your wishes for the future should your circumstances alter whilst still allowing your Attorney to manage your financial affairs once you are unable to do so. And all without the expense, stress and complexities of returning to Court to seek further legal authority.
Court of Protection
Dealing with incapacity
In an ideal world, everyone would complete a Lasting Power of Attorney while they were all able to do so, making their personal wishes nice and clear for their family, friends and Court of Protection (if the need ever arises).
However, life is never that straightforward. And if you or a member of your family has already been affected by mental incapacity, then an application to the Court is necessary to protect the financial interests of the vulnerable person. Appointing a Lasting Power of Attorney that’s been registered with the Office of the Public Guardian sidesteps this issue. (Or an Enduring Power of Attorney for property and affairs that’s been made, signed and registered before 1st October 2007 before the Donor began to lose capacity.)
If an individual no longer has the mental capability to make decisions for themselves regarding issues like money or property, then it may be necessary to apply to the Court of Protection to get them to issue an Order appointing a Deputy to act on their behalf. This Deputy can be a Lay Deputy – who is usually a competent family member – or a Professional Deputy.
What a Deputy does
The Deputy’s role is to act in the best interests of the mentally incapacitated person at all times. He or she will be closely monitored by the Office of the Public Guardian to make sure everything is being done in the individual’s best interests.
Here are some examples of the kind of decisions a Deputy may be called to make:
- dealing with banks and building societies;
- paying bills and insurance policies;
- investing funds;
- claiming benefits;
- completing and filing tax returns;
- providing annual accounts to the Court (this is a requirement);
- appointing/ liaising with case managers and/ or carers;
- dealing with employment issues;
- purchase of property and arranging adaptations if required; and
- purchasing necessary specialised aids and equipment.
Appointing a Deputy
Unless you’ve formerly appointed a family member or friend or even a Professional to act on your behalf via a Court-registered Lasting Power of Attorney, then someone has to step in to manage your affairs should you lose the ability to make financial decisions for yourself. And if no Lasting Power of Attorney has been registered, then it’s up to the Court to appoint a Deputy on your behalf. (This used to be known as a Receiver.) He or she will deal with all the financial decisions relating to your property and report back to the Court on a periodical basis.
This can be a complex process. That’s why we at Fletchers will do our best to demystify the whole procedure. Sometimes decisions like this need to be made at a highly traumatic time but you can be sure that we have the experience and the understanding to help make this as painless and as seamless as possible. Whether it’s assisting you with an application, or assuming the role of Professional Deputy ourselves if there’s no one else you know who’s willing or able to take it on, you can trust us to handle your requirements to the very best of our abilities. For us, it’s all about putting your best interests at the heart of everything we do.