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If an individual is struggling to make decisions regarding their finances or health and welfare then an application can be made to the Court of Protection to assess whether or not that person is capable of making decisions. If the Court deems that the individual lacks the mental capacity to manage their affairs, a nominated person or persons (a Deputy) will be appointed by the Court to make those decisions, or the Court will make those decisions itself.

In cases where an individual who has sufficient mental capacity wishes to nominate an ‘Attorney(s)’ to deal with their finances and property, and/or make any decisions regarding their health and welfare should it be necessary in the future, a legal document known as a Lasting Power of Attorney can be completed and sent to the Office of the Public Guardian (which deals with the administration of the Court of Protection) for approval and registration if approved.

Any disputes or concerns regarding Deputyship Orders or Lasting Power of Attorney documents can be dealt with by the Court of Protection.

The Court of Protection makes orders and decisions in accordance with the Mental Capacity Act 2005. The Act provides the definition of a person who ‘lacks capacity’ and is the legal basis which governs the decisions made by the Court of Protection.

The Code of Practice, which accompanies the Act, provides guidance for those making decisions on behalf of others, e.g. to keep accounts and records of all dealings made when acting as an Attorney or Deputy.

See www.justice.gov.uk for further information.

The GoodyBurrett LLP Wills & Probate Services Team can advise you on all aspects of Court of Protection applications and procedures.

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