This area of law is of fundamental interest and importance to us all.

Until the coming into force of the Mental Capacity Act 2005 in October 2007, this area of law and practice was largely (and remarkably) free of statutory guidance, regulation and procedures. This has all now changed.

Why is this area of law so important?

To contrast with the making of a will, which most people will regard as vitally important to ensure that their money and property on their death goes to the people they wish it to go to rather than who the law says it should go to, current mental capacity law allows individuals to specify, in the event of losing the ability to decide for themselves, whilst alive:

• What should happen to their money and property
• Who should be trusted to make decisions regarding their money and property (if anyone)
• What medical treatments they may wish to have and to state those that they definitely do not want to have
• Who should be consulted about or make decisions about medical or social care issues for them

In order to specify in advance what a person wants to happen if, for any reason, they are unable to make or communicate a "capacitous" decision one can create one or both of the following:

• A Lasting Power of Attorney for health & welfare
• A Lasting Power of Attorney for property & and financial affairs.

We can advise and assist with the creation of the above documents including providing a "certificate of capacity" along with the registration of these documents with the Office of the Public Guardian.

We can also advise, assist and represent with:

• General mental capacity law advice in relation to the Mental Capacity Act 2005 and ever evolving case law;
• Registering an existing Enduring Power of Attorney with the Office of the Public Guardian;
• Professional Court of Protection deputy services for property & financial affairs;
• Applying to the Court of Protection for a deputyship or change of deputyship for personal welfare and/or property & financial affairs or other bespoke applications (e.g. gifts and statutory wills);
• Creating General Powers of Attorney;
• Assisting in reporting concerns about an attorney to the Office of the Public Guardian;
• Defending clients who are subject to Court of Protection proceedings including when concerns have been reported about their handling of the incapacitated person's financial affairs and/or their welfare;
• Assisting as an authorised legal representative (Rule 1.2 representative) or litigation friend in Court of Protection proceedings (or as litigation friend in other proceedings);
• Court of Protection cases brought under s.21A Mental Capacity Act 2005 (Deprivation of Liberty Safeguards or DOLS);
• Court of Protection cases brought under s.16 Mental Capacity Act 2005 (contested cases involving decisions about welfare, care/support, contact, residence, best interests, capacity or medical treatment);
• Matters involving the Inherent Jurisdiction of the High Court concerning vulnerable adults.

We generally act for the person understood to lack capacity ("P") or a family member.

Please do contact us for further information.


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