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Mental Capacity and Powers of Attorney

Have you ever worried about what happens if you lose the capacity to manage your affairs?  Or had to look after a parent or loved one in that position?

“Imaginative, forward thinking and immensely hard-working, time and again the team at PHB achieve extraordinary results for their clients. They are absolutely at the top of their game when it comes to advising in cases involving the vulnerable. The attention to detail and their experience in identifying and obtaining the very best witness evidence against the tightest of deadlines is hugely impressive. There is a breadth and depth of talent in this team that makes them the first choice in this line of work” Michael Mylonas QC, Serjeant’s Inn and the Lawyer’s “Barrister of the Year 2019"

Mental Capacity assessments

It may be necessary in the first instance to gauge a person’s capacity to take certain actions, including the capital to make a Will or a gift, grant a power of attorney or enter into an agreement of sale or purchase, or even giving instructions to a solicitor or other adviser.  We can help you obtain the necessary report, providing appropriate briefs to medical/psychiatric experts.

Powers of Attorney

Powers of attorney are powerful documents which allow a person to delegate their authority to someone they choose. Some powers of attorney (in the UK called Lasting Powers of Attorney – “LPAs”) will continue to operate even, if in the future, you lose mental capacity. LPSs come in two forms:

  1. The first deals with property and financial affairs and
  2. The second deals with health and welfare matters.

These documents can be invaluable in safeguarding your assets and health and well being in the future.

Our experts will consider your circumstances and then assess which power of attorney is the most appropriate for you. We will prepare the necessary documentation for you and make sure that it includes all of the powers that your attorneys may need. We may then take steps to register the document with the Office of the Public Guardian so that your LPA will be ready to use as soon as it is needed.

Deputyships and applications to the Court of Protection

If mental capacity is lost before a valid LPA is made, an application may need to be made to the Court of Protection for a Deputyship Order, appointing a Deputy to manage the financial affairs of the person who has lost capacity.  Such applications can be complex and protracted and our experts can help you navigate the process as efficiently as possible.

We can also help you apply to the Court for a number of other Orders, including:

  1. A determination of what medical or care treatment should be given, for example where there is a dispute about this between the family and the Local Authority the Health Authority;
  2. Authorising attorneys or Deputies to make substantial gifts from the person’s estate for inheritance tax planning purposes; and
  3. Removal of an attorney or Deputy who is not acting in the best interests of the person who has lost capacity; or revocation of a Deputyship Order that is no longer required.

Disabled Persons’ Trusts

These trusts benefit from special tax treatment and are often used to protect compensations received under a personal injury claim.  They can also be used by families seeking to protect a relative who will struggle to manage their finances without assistance.

We can help you assess whether such a trust would be beneficial for your family, and set it up for you as necessary.