Community Care Law solicitors answer your questions about Court of Protection litigation
You should make an application to the Court of Protection to be appointed as your mother’s Deputy for Property & Finance. Once appointed, you will be able to manage your mother’s finances for her and use her funds to pay for her care.
You can ask for a copy of the Social Services Mental Capacity Assessment to see why they decided he lacks capacity. This should not be a blanket opinion that your father cannot make any decisions for himself. The test for mental capacity is decision–specific, meaning your father may be able to make some decisions for himself, with or without assistance.
If there are important decisions that your father cannot make for himself, you could ask Social Services to appoint an Independent Mental Capacity Advocate (IMCA) for your father. IMCAs are experienced and skilled professionals who make sure that the vulnerable adult’s wishes and feelings are heard and respected by everyone including Social Services in the best interest decision making process.
You should ask for best interests meeting to be held to discuss where your aunt should live and be cared for. If a consensus cannot be reached via the best interests process, then Social Services should make an application to the Court of Protection for a decision.
The Court will consider all of the evidence, including your aunt’s wishes and feelings, and the Judge will make a best interests decision about where your aunt should live and be cared for.
The Enduring Power of Attorney (EPA) does not give your brother the power to make decisions about where your mum should live and be cared for. The EPA only allows him to make financial decisions.
If your mum lacks the capacity to make the decision for herself, then a best interests meeting should be held. This involves everyone putting forward their views, but also considering your mum’s wishes and feelings and what she said about care at home before she lost capacity.
If family members continue to disagree about what is best for your mum, you may need to ask social services to apply to the Court of Protection.
You can report the matter to the Social Services Safeguarding Team and/or to the Office of the Public Guardian (OPG). Both have duties to investigate how your uncle’s finances are being managed or mismanaged.
If they find your cousin is abusing his role as Attorney, or he cannot manage the financial role properly, the OPG can apply to the Court to revoke the Lasting Power of Attorney.
The OPG will likely then appoint a Deputy for Property & Finance. It may be sensible to consider a Professional Deputy to minimise family conflict.
You can make an application to the Court of Protection for a health and welfare Deputyship.
In addition to application forms you will need to provide the Court with a statement giving the reasons why you think it is in your son’s best interests for you to act as his Deputy. We can help you to write a statement explaining to the Court what decisions need to be made for your son in the future and why you are the best person to make those decisions on his behalf.
Applications to the Court of Protection should only be made when all other routes have been explored but no resolution has been reached. Other avenues which should be exhausted first include meetings with health and social services, mediation and alternative dispute resolution.
In some circumstances, the matter might be urgent and an application to the Court of Protection is the only appropriate course of action. In other cases, the matter may have been ongoing for so long, with no agreement despite many meetings, that the Court of Protection is the final and only option.
Our Community Care Law Team specialise in urgent and non-urgent applications and will represent you at hearings whether you are an applicant or a respondent in the proceedings.
The Court charges an application fee of £400, but there are additional court fees and costs associated with Court proceedings, such as Expert and barrister fees.
Court of Protection proceedings are expensive, so our team at Martin Searle Solicitors always try to avoid unnecessary applications where possible.
If an application is inevitable, we will provide you with cost estimates for our work and any additional charges at every stage of the process. We review our cost estimates on a regular basis and update you with any changes.
For some non-contentious applications, such as Deputyship applications, we can offer an agreed fee so you know from the outset what costs are involved.
Since 2004, our Community Care Law Team has helped clients navigate their cases through the Court of Protection. We achieve excellent outcomes for adults at risk and their families, ensuring that the rights of people lacking capacity to make their own financial or welfare decisions are protected.
We know that Court of Protection proceedings can be stressful. We have the experience and expertise to support you throughout the process.
If you need further information regarding a Deputyship application or about how the Court of Protection might assist you or a loved one, contact us today on 01273 609911 or email email@example.com.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021