McHale & Co. Solicitors Blog

Legal access to personal finances when mental capacity is of concern – Part 2 Court of Protection

One of the more frequent questions I receive from clients is about how to access a family member’s money when they are concerned that they no longer have mental capacity.  The money is generally required to ensure their relative receives the best care possible irrespective of their physical or mental condition.

In my experience often the first sign that a family becomes aware of a dementia related illness is through financial problems.  Loved ones forget to pay the bills, obtain insurance for household items they don’t own and get generally confused about things to do with finances.

There are two legal routes to follow where mental capacity is concerned.  The most cost effective way is to put a Lasting Power of Attorney in place while you still have capacity.  When capacity has been lost then the only route to access finances is through the Court of Protection.

Who are the Court of Protection?

The Court of Protection was set up as part of the Mental Capacity Act 2005 and it’s fundamental role is to protect vulnerable people.  If a person has lost mental capacity then the appointment of a Deputy is made by the authority of this court.

If a dispute arises in relation to a patient who lacks mental capacity then this is also referred to the Court of Protection.  For example you may have seen some sad cases in the national press where families are feuding over access to parent’s funds or where disputes arise on whether medical treatment should be allowed for vulnerable people.

What is a Deputy?

A Deputy is a person appointed by the Court of Protection to manage the affairs of a vulnerable person. 

You can apply to be a Deputy if you are 18 or over.  Applications are generally made by close family members or by professionals such as Solicitors or Accountants.

Appointing a professional deputy can be helpful in the event of disputes amongst family members to ensure the best interests of the patient do not conflict with those of family members.  However there are increasingly occasions where there is just no one else to assist a vulnerable patient and the only option is to appoint a professional.

Why would I need one?

If your loved one has lost mental capacity either through an illness or injury then you may need to appoint a Deputy.

This won’t happen to me.

With today’s increasingly ageing population dementia related illnesses are on the increase.  The current statistics from the Alzheimer’s society forecast that over a million people will have dementia by 2021.

It’s not just for the elderly! If as a result of an accident or a medical condition you suffer a brain injury then you may temporarily lose your capacity. Car accidents or Sports injuries resulting in concussion can be one way where anyone at any age can lose capacity. 

Couples

Although many couples have jointly owned assets, in a lot of cases couples will still maintain separate bank accounts often for tax reasons such as to take advantage of ISAs .  If all assets are joint and one partner suffers from a dementia related illness then in reality their partner can still access funds to pay the bills, buy food, fix the roof etc.  However with separate funds or all assets held in one party’s name it can sometimes lead to distressing situations where the bank will not allow you to access your partner’s funds should they lose capacity.  We have also been made aware of instances where banks have frozen joint accounts in certain circumstances.

The problems become more apparent when there is a single elderly parent or a widowed or divorced parent. 

Costs

It is more costly to go through the Court of Protection process than to make a Lasting Power of Attorney.  Apart from the timescales the court fee for a Court of Protection application is £400 as opposed to £110 for an LPA. 

How do I find out more?

We have several people that can assist you here at McHale & Co but to get started please call and ask for Philippa Wright on 0161 928 3848 or email at philippa.wright@mchaleandco.co.uk

Leave a comment

Leave a Reply



(Your email will not be publicly displayed.)




Read Next Blog Post

Close