Protection and Planning for the Vulnerable
Partner - Head of Private Client Team
Professional Support Lawyer
Wedlake Bell LLP has ‘a very strong and experienced practice that is accustomed to dealing with high-value and complex estates and trusts’.
Legal 500, 2016
The team's service is characterised by ‘personal chemistry both within the firm and towards the client' and by its‘readiness to wrestle with the intractable problems and to reach wise and humane solutions'.
Legal 500, 2014
The team is appreciated for its ‘good response times and realistic time schedules’.
Legal 500, 2013
Our team provides advice on how to provide for, and protect the interests of, individuals who may lack mental capacity to manage their affairs and make decisions for themselves.
A lack of mental capacity may be due to:
- a stroke or brain injury
- a mental health problem
- a learning disability
- confusion, drowsiness or unconsciousness because of an illness or the treatment for it
- substance or alcohol misuse
We can offer guidance and support to those who are:
- concerned about the ability of someone to manage their financial affairs or make decisions about health and welfare issues
- responsible for managing someone's financial affairs or making decisions about health and welfare issues
- concerned about their own ability to manage their own affairs
We can advise you on:
- Planning for incapacity
- General management of financial affairs
- Providing for vulnerable beneficiaries via trusts
- Protection of vulnrable individuals via the Court of Protection
- Planning for incapacity in later life is becoming more important as medical technology helps people to live longer. However, such planning should not just be considered an issue for later life; incapacity can arise from an accident or illness at any stage in life, be it temporary or permanent.
- We advise on and prepare Lasting Powers of Attorney (LPAs) so that an attorney can be appointed in advance to deal with an individual’s ("the donor") affairs in case s/he should become incapacitated and therefore unable to manage their financial affairs and/or make decisions about their health (such as life sustaining treatment) and welfare (such as where they should live).
Why make an LPA?
- Although attorneys appointed under an LPA, or the old form of Enduring Power of Attorney (EPA), can largely deal with the donor's affairs in the way the donor did, they are subject to a duty to act in the donor's best interests and there are restrictions over the extent of their powers. We advise attorneys on the concept of best interests and their duties when undertaking such a role.
- We advise on and prepare Advance Directives for Healthcare – often called Living Wills – which allow a person to set out in advance their refusal of certain medical treatment in the future in the event that they lack capacity to consent to / refuse treatment at the time.
Applications to the Court of Protection may be needed to deal with the following:
Declaration of incapacity/capacity
The legal test for assessing whether someone has capacity differs for each type of decision to be made (for example, a decision to make a gift of assets, to make a Will, to marry, to have contact with someone else, to refuse medical treatment etc). We can advise you on the legal tests and liaise with medical experts to determine capacity in such circumstances. If there is disagreement or uncertainty or a dispute over whether someone has capacity to make a certain decision, the Court of Protection can be asked to make the final decision in this respect. There are times when the Court's input is needed as a matter of urgency (for example, in life or death situations regarding medical treatment); we can guide you through the emergency applications process.
Decisions about Property and Financial Affairs
If someone is unable to manage their financial affairs due to lack of mental capacity and they had not put a Lasting or Enduring Power of Attorney in place when they had capacity, an application will be needed to the Court of Protection for a deputy to be appointed so that assets can be accessed and managed in favour of that person. We can guide you through the entire Court application process and offer ongoing support thereafter in your role as deputy. We can also act as deputy if there is no one else available.
Why Make a Lasting or Enduring Power of Attorney
If you are appointed as an attorney under a Lasting or Enduring Power of Attorney or a deputy by the Court you will have limited powers to make gifts to others of the assets you are managing on behalf of someone who lacks capacity. You have strict duties to comply with as an attorney or a deputy. We can advise on whether a Court application is needed to make a proposed gift and guide you through the Court application process. It may be the case that the intended recipients are too young or are otherwise unable to manage assets in their own names or it is the intention for the gifted assets to be protected from the risk of a recipient’s divorce or financial difficulties; a trust can be set up to offer such protection and we can guide you through the process of applying to the Court for authority to set up the trust on behalf of the person who lacks capacity.
Why Make a Lasting or Enduring Power of Attorney Gifts for life: how to make sure you can keep making gifts even if you lose mental capacity
- Statutory Wills
It is very important to have Wills in place to ensure that your assets will pass to those you want to benefit on your death and also ensure that your wishes are met in a tax efficient manner. If a person lacks capacity they cannot put a Will in place or make any amendments to their current Will if their circumstances have changed. However, an application can be made to the Court for a statutory Will, to be put in place on his / her behalf. We can advise and guide you through the Court application process to include the evidence needed, the tax implications of the proposed gifts under the Will, the most appropriate structure of the Will and how to deal with potential challenges to the Will.
Why Make a Will
- Removal of attorneys / deputies
If you are concerned that an attorney, appointed under a Lasting or Enduring Power of Attorney, or a deputy appointed by the Court of Protection acting on behalf of someone who has lost capacity (“the donor”) to manage their affairs may be abusing their position by, for example, using the donor’s money for their own benefit or otherwise not acting in the best interests of the donor, an application can be made to the Court of Protection for the attorney to be removed and replaced if the Court deems it to be in the best interests of the donor to do so. We can advise and guide you through the Court application process.
Decisions over Health and Welfare Issues
- Living Arrangements and Contact
Sometimes families do not agree on decisions made about where and with whom a person who lacks mental capacity (or may lack mental capacity) should live, for example in a family home or a residential or other care setting. Disputes may also arise about who the person lacking mental capacity should have contact with or the level or contact and the arrangements for it. This can also extend to sexual relations and marriage. In these situations, our specialist team can ensure that your views are represented and provide expert advice and assistance at any stage of the process, from capacity assessment to representation at Court.
Marry in haste... Why the law on capacity to marry needs to be reformed
- Medical Treatment
Disputes in relation to medical treatment are very important decisions, as these decisions can have huge health consequences. Disputes can range from medical treatment challenges, to end of life decisions and decisions to withdraw life sustaining treatment. In many cases an urgent application to the Court of Protection may be necessary. Some medical decisions are so serious that the courts have ruled that, in each case, an application should be made to the Court.
- decisions about withholding or withdrawing artificial nutrition and hydration (ANH) from patients in a permanent vegetative state (PVS)
- cases involving organ or bone marrow donation by a person who lacks capacity to consent
- cases involving the proposed sterilisation of a person who lacks capacity
- cases where you have any doubt or dispute about whether a proposed treatment is in the best interests of the person without capacity.
It is therefore imperative that expert advice and guidance is sought in medical treatment disputes. Our specialist team are able to provide expert advice and assistance at any stage of the process, from capacity assessment to representation at Court.
- Jurisdiction Issues; visiting or living in another country
Problems can often arise where a person who lacks mental capacity (or may lack mental capacity) wishes to move abroad or visit a foreign country or where that person's family members wish to take the person abroad either temporarily or permanently. Where there are concerns that such a step would not be in that person’s best interests, an application may be needed to the Court of Protection for restrictions to be imposed. This may involve an urgent application to the Court of Protection. Our specialist team are able to provide expert advice and assistance at any stage of the process including making emergency applications where a decision is needed fast.