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There may come a time when a person cannot manage their own financial affairs or personal welfare and are unable to make significant decisions for themselves.
It is possible for someone else to do this on their behalf by becoming their Deputy. The role of a Deputy can vary and may include managing property or accommodation and financial affairs through to dealing with personal welfare and medical treatment.
To become a Deputy an application needs to be made to the Court of Protection providing detailed information regarding the circumstances of the person without “capacity”. The court will review their situation and appoint an appropriate Deputy to take responsibility.
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The majority of cases which the Court of Protection (COP) team manage are the result of a child being damaged at birth and receiving compensation for their injuries.
However, we also make applications for people who are mentally incapable of managing their finances such as those with dementia or an acquired brain injury.
The Court of Protection is a specialist Court which deals with the finances and welfare of people who do not have mental capacity to make those decisions themselves.
Once a claim has been settled, we work closely with the medical negligence team to ensure clients are guided and helped through the next stages.
We work with people from many different backgrounds. Our cases not only include children but also young adults and the elderly. Some people do not realise they have a claim for negligence until they speak to us and then they find managing a significant award overwhelming. We can help with this.
An award may consist of a lump sum as well as annual income payments. We take financial advice regarding investment and can then either apply to the Court for a Deputy to manage the award for someone who does not have mental capacity or we can apply for a Personal Injury Trust to manage the award if the claimant is physically damaged, but retains mental capacity. This means that in future they may be able to attend annual meetings and meet their financial advisor as well as partake in decisions. It also means that, for a child, they have the choice of continuing or ending their personal injury trust once they attain the age of 18.
Money spent is used in a person's best interests and, bearing in mind it is a finite resource, we need to ensure that we cover the spiralling cost of care for life. We get involved with "cash-flow forecasting" so that we can monitor funds and ensure that they are wisely used. However, we also realise that the fund should also be used to help a person enjoy life so we help arrange to pay for holidays and have even helped clients start up their own business.
We use a holistic and bespoke approach. Each client has different needs, wants and aspirations and we help fulfil these and alleviate some of the worry, pressure and stress on the family thereby allowing them to concentrate on caring for their loved one. We have extensive connections with Accountants, Financial Advisors, Payroll Specialists, Case Managers, Education Solicitors regarding Education and Health Care Plans (EHCPs), Surveyors, Architects, and Carers. We bring everyone together to ensure that funds are used in the clients’ best interests.
Once you have instructed our team to work on your behalf we will make the application to the Court of Protection completing all of the standard forms and advising you throughout.
The court presently charges a £365 application fee and more details on court fees can be found here.
If your application has resulted out of the settlement of a clinical negligence claim then your legal fees and disbursements (Court fees etc.) were most likely to have been included in your claim.
The forms to make an application to the Court of Protection are extensive and if an award is going to be more than £1 million then it is recommended that a professional deputy, such as a solicitor, is appointed otherwise there may be difficulty in obtaining the insurance which has to be in place before the court will grant deputyship.
If a child is physically disabled but likely to understand financial decisions at the age of 18 and manage their award then we can make an application for a Personal Injury Trust to be set up with the parents and a Solicitor as Trustees.
This is so we can manage the funds for the child flexibly and also assist the child in understanding how their money can be managed as they get older. Should mental capacity be retained then we can make an application for a Personal Injury Trust appointing Solicitors and the parents as professional Trustees for their child. Such a Trust is flexible and allows decisions to be made quickly and without further intervention of the Court. However, we are keen for the child to join in Trustee meetings when they get older so that they can partake in their own decisions and understand the workings of the trust, as well as building up a relationship with their professional advisors.
The use of a trust offers flexibility on decisions regarding investments or the purchase of property and all other major decisions can be made without having to make further time-consuming applications to the court.
Having a professional trustee also gives the child an independent person to turn to, should they so wish, and they also act as an officer of the court until the child reaches the age of 18. After the age of 18, the child can choose to continue the trust.
We work closely with the family so as to achieve the best for the child. We understand the concerns families face and offer an approachable and friendly service, always putting everything in plain English.
Senior Associate – Solicitor
Associate - Solicitor
Senior Associate – Chartered Legal Executive
Our medical negligence and personal injury teams have been nationally recognised for over 20 years because of their expertise, empathy and commitment to securing maximum compensation for our clients.