Court of Protection

How We Can Help When Someone Loses Mental Capacity

We all want the very best for our family and loved ones, and that includes ensuring that if they lose the ability to make decisions on their own behalf, their welfare issues and finances are taken care of as they would wish. The Court of Protection is the legal body that exists to safeguard vulnerable people who lack the mental capacity to make decisions for themselves.

Acting as an Attorney or Deputy

If someone close to you loses their mental capacity, unless they have already created a Lasting Power of Attorney, you may have to make an application to the Court of Protection to obtain the necessary legal authority to be appointed their Deputy to help them manage their affairs.

We have in-depth expertise in this area; one of our Partners, Nigel Ashton, is one of only 68 Panel Deputies appointed by the Office of the Public Guardian, and this means that he can act as a Deputy, and guide and assist those looking to become a Deputy, helping them with the paperwork, legal duties and responsibilities involved.

Dealing With Disputes Surrounding Care

Sadly, disputes can sometimes arise between families and public authorities such as Social Services and the NHS. These can often be about where a person should live or the treatment they should receive. We help families facing problems like these. We advise them on their rights, and can help them make application for resolution to the Court of Protection.

In certain circumstances, an adult lacking mental capacity can find themselves confined in a hospital, care home or community placement where, for their safety and wellbeing, they are placed under continuous supervision and control, and not free to leave. These restrictions can give rise to serious concerns for family members.

Under the Mental Capacity Act 2005, anyone deprived of their liberty because of their care needs is entitled to legal protection. Deprivation of Liberty Safeguards exist to ensure that the restrictions placed on the patient’s liberty are lawful and necessary, and don’t unnecessarily restrict their freedom. We help families deal with the appropriate authorities to resolve concerns, and if required we can help with an application to the Court of Protection to review the patient’s care plans.

Statutory Wills

If you are acting as someone’s Deputy or Attorney, you may find yourself faced with the issue of their Will. If they were to die without having a Will in place, their estate would be distributed in accordance with the rules of intestacy, which might mean that their assets weren’t distributed in line with their wishes. In this instance, to make what’s called a Statutory Will on the person’s behalf, you will need to make an application to the Court of Protection. We can help you by explaining the court process, and help you draft a Will that protects the interests of the testator and their family.

Personal Injury Trusts

Whilst the main cause of mental capacity is dementia, it can also arise because of a personal injury sustained because of an accident or through poor medical treatment. Where compensation is awarded, it may be appropriate to set up a personal injury trust. If the personal injury trust requires court approval, due to the mental incapacity of the injured person or because they are aged under 18, we can make the necessary application to the Court of Protection on their behalf.

If you would like advice on any issues relating to mental capacity, please do get in touch. You will find us knowledgeable, approachable and adept at explaining complex legal issues in straightforward, plain English. Please contact Nigel Ashton at, or call 01767 680251.