Mental capacity

“I would like to thank you for all your work on my behalf and it is really important to me to have someone who I feel I can trust and advise me.”

Mr B Reading
It is not uncommon for individuals to lose the ability to make decisions for themselves; this could be due to a mental health condition, a severe learning difficulty, or a sudden accident.

If you are affected, either directly or indirectly, specialist lawyers within our Private Client Services group can help you to ensure that your affairs and those of family or loved ones are properly taken care of at a time when you (or they) are at their most vulnerable.

We can assist with a host of issues arising out of the loss of mental capacity, which will fall into one of the following areas of advice:

Powers of attorney

A power of attorney is a legal document that enables a person (known as the donor) to give another person (known as the attorney) the legal authority to manage the donor's lifetime affairs. It is an extremely useful document, which could save you and your family a great deal of cost, delay and distress.

There are a variety of reasons why someone you trust might need to make decisions for you at different times in your life. It may be that, at some point in the future, illness or old age will mean that you are no longer able to manage your affairs. A power of attorney enables you to plan for this eventuality by nominating a loved one to step in and handle things for you. Alternatively, if you are out of the country for extended periods of time, you may need someone to make decisions for you in your absence.

Importantly, mental capacity is not just something for older people to consider. Young or old, life throws up surprises that catch us unprepared and can leave us unable to deal with the consequences. Powers of attorney are powerful documents, and there are a number of different types available. If you are thinking of entering into one, we recommend that you take our professional advice from the outset, so that you can be sure that the document you sign is properly drafted and fully reflects your wishes.

We can assist with all aspects of mental capacity, including advice on:

  • Drafting and registering lasting powers of attorney
  • Registering existing enduring powers of attorney with the Office of the Public Guardian
  • How to deal with a person’s affairs through the Court of Protection should no power of attorney be in place
  • Preparing a statutory Will at the request of the Court of Protection for an individual who lacks capacity
  • Settling personal injury awards through the Court of Protection in cases where incapacity results from a serious accident or from medical treatment
  • Making gifts to friends and family on behalf of an incapacitated person
  • Care issues for the elderly
  • Managing the consequences for a business if a director and business partner suffers a loss of capacity and becomes unable to manage their responsibilities within the business

For further information on powers of attorney see our client guides to the right. 

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Court of Protection

If a person who does not have an enduring or lasting power of attorney in place becomes unable to manage their own affairs due to lack of mental capacity, it may be necessary to appoint a deputy for them. A deputy is a person appointed by the Court of Protection to manage the affairs and make decisions on behalf of the incapacitated person.

Deputyship applications are usually required where all of the following apply:

  • A person is incapable of managing their affairs due to mental incapacity
  • They have no enduring or lasting power of attorney
  • They have assets that need to be used for their benefit and/or assets over £10,000

For further information on Court of Protection see our client guides at the top right of this page.

At Blake Morgan we are able to provide help and advice about applications to the Court of Protection for the following:

  • Where there is no dispute ('non contentious')
  • The appointment of a deputy and management of the patient's affairs
  • Making gifts on behalf of the patient
  • Making a Will on behalf of the patient
  • Seeing awards from personal injury claims into trusts.
  • Where there is a dispute ('contentious')
  • Disputes over the registration of enduring or lasting powers of attorney
  • Disputed applications for statutory Wills
  • Disputes over the appointment of deputies for persons who have lost capacity
  • Disputes arising from the conduct of a deputy appointed for someone who has lost capacity

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Personal injury trusts

The main cause of mental incapacity is dementia which often, but by no means always, occurs in old age. Another common cause is personal injury which often results from serious accidents or poor medical treatment. In these circumstances, it may be possible to claim compensation through personal injury litigation.

Our team of specialists is able to guide you through such a claim. It may be possible to obtain interim payments to assist with any alterations to your property or to enable you to move residence. It is also important to ensure that an appropriate care regime is in place to enable the injured individual to live as independently and as full a life as possible. We can provide expert assistance with setting an appropriate care and therapy regime.

The personal injury or clinical negligence compensation awarded may be substantial and require special treatment, either through the involvement of the Court of Protection or through a trust arrangement.

Every person who receives such compensation should consider setting up a personal injury trust as it can help you manage your finances and safeguard the value of your compensation award. A personal injury trust is set up to hold your compensation award on your behalf and for your benefit.

Few people realise the full effect that a compensation award will have on their financial circumstances. A personal injury trust is particularly beneficial for people who:

  • Are currently entitled to means-tested state benefits or may need to claim such benefits in the future
  • Currently require care at home or live in residential care because of their injury
  • May in the future require care at home or need to live in a residential/nursing home because of their injuries or old age
  • Require help and assistance managing their day to day affairs
  • Without a personal injury trust in place, your compensation award is very likely to mean that you will not be entitled to means-tested benefits and that you may have to pay for your own care with only limited assistance from the state

We can provide expert advice on which type of trust is most suitable for your needs, who you should appoint as your trustees, and how the trust can be managed to ensure that your compensation is only used for the purposes you intended and for your benefit. Where possible, you would be included as one of the trustees and, if a professional person is required or desired, partners here at the firm can act as one of your trustees.

If the personal injury trust requires Court approval, due to the mental incapacity of the injured person or because they are under 18, our specialists in this area can make the necessary application to the Court of Protection.

We can advise on the creation of the personal injury trust and also the ongoing management and administration. Furthermore, whilst we cannot give financial advice, we can put you in touch with an independent financial advisor to ensure that your compensation is properly invested. As Blake Morgan provides a complete legal service we can also assist with any related matters such as taxation or the sale and purchase of property.

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Related expertise

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Related Knowledge & Resources

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Rebecca Davies was just a few months old when she was involved in an horrific car accident that changed her life forever.

After Cheshire West – Where now?

The Cheshire West case is primarily of interest as it looked to clarify the point at which a person who has lost mental capacity is being deprived of his liberty by their carers. The Court of Protection decision was overturned by the Supreme Court.