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What is the Court of Protection?

Ash Hill Solicitors • August 4, 2022

The Court of Protection is a specialist court that makes decisions about the property; finances; and personal welfare of those who lack the mental capacity to take decisions themselves.


The role of the Court of Protection is to make decisions for people about their money, property, health or welfare.


You can find more information about the Court of Protection here:

https://www.gov.uk/courts-tribunals/court-of-protection


Why can’t my next of kin make decisions for me?


This is a common question, however, the phrase ‘next of kin’ is often used but has no legal status in relation to financial decisions. The only person able to manage your finances, if you lose the capacity to do so for yourself, is a court-appointed deputy or attorney acting under a registered lasting or enduring power of attorney.


Our specialist and highly experienced Court of Protection solicitors are here to help and support you at an often difficult and stressful time in your life.


As Court of Protection solicitors, we support families dealing with such circumstances and are sensitive to the dynamics that this may create within the family. Where there is dispute within the family, we can also handle litigation in the Court of Protection. Whatever the situation, we will do our best to help you.


What is a Court of Protection Deputy?


A deputy is someone appointed by the Court of Protection to deal with the property and financial affairs of a person who lacks the mental capacity to do so themselves.

If your loved one is in such circumstances, you will need to make a deputy application. A deputy application is made to the Court of Protection. The person(s) named as deputy/deputies is/are chosen by the Court of Protection and not by the donor and, accordingly, could be someone the donor would not ordinarily choose to make such decisions.


Who can be a Deputy?


A deputy must be at least 18 years old. It could be a family member or a friend. It can also be a professional person such as a lawyer. In complex cases, particularly those involving large sums of money, the Court may prefer to appoint a professional deputy. If you don’t know anybody that is able, suitable, or willing to act as deputy, Ash Hill Solicitors could apply to the Court of Protection to be appointed.


What’s the difference between a Property and Affairs Deputy and a Personal Welfare Deputy?


A deputy for property and affairs can make decisions about financial matters, such as paying bills or buying services; whereas a personal welfare deputy can make decisions about health and welfare matters; such as deciding where someone lives and the care and treatment they receive.


It is rare for the court to appoint personal welfare deputies and it will only do so in the most difficult cases. If there is a dispute about a health and welfare decision the court will usually make the decision itself rather than appoint a deputy to make the decision.


What is ‘incapacity’?


The law presumes that everyone has the capacity to make a decision unless it can be shown otherwise. An assessment of capacity (on form COP3) by a qualified practitioner must accompany the deputyship application, so the court can decide whether the person lacks capacity to make certain decisions for themselves.


In the legal context mental capacity is the ability to make decisions. Examples of the situations in which it might be particularly important to establish a person's mental capacity include when in relation to making a will, undertaking lifetime giving or making a lasting power of attorney. Establishing mental capacity (or incapacity) might also be particularly important in relation to decisions about an individual's physical well-being, including about the medical treatment he/she is to receive. It might also be relevant in relation to more humdrum decisions about an individual's everyday activities and lifestyle. The test of mental capacity here is a legal test rather than a medical test or diagnosis. And what is important in assessing mental capacity is to focus on the processes by which a decision is made, rather than on the decision itself.


Here is some useful information about Mental Capacity Act:

https://www.mind.org.uk/information-support/legal-rights/mental-capacity-act-2005/about-the-mental-capacity-act/


Will the Deputy have to show their fitness to act?


The court will require the proposed deputy to complete a deputy’s declaration (COP4) to ensure they are financially sound and understand their responsibilities as deputy.


How does the Court of Protection decide whether a Deputy should be appointed?


The court will decide whether the person lacks capacity and what sort of decisions the deputy will need to make. This will be set out in a court order.


What powers will the Deputy have?


  • Only those which are set out in the court order. The deputy will usually be allowed to:
  • deal with any income, and to pay any bills and debts;
  • deal with any cash assets, e.g. bank and building society accounts;
  • manage or sell property;
  • make small gifts on special occasions such as birthdays; and
  • deal with any capital assets and make any investment decisions.


Does the Deputy have complete control over the person’s affairs?


No, the deputy can only do what it says in the court order. They must also work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act.


How long will it take?


It can take 5 to 8 months for a deputy to be appointed, although recently the applications are being severely delayed. It often takes even longer if the court needs more information to decide the application. To avoid delay, it is important that all of the forms are completed properly, and the court is given all the relevant information at the outset.


In very urgent cases, it is possible to ask the court to grant an interim order, for example to access funds to pay debts.


Are Deputies supervised?


Deputies are supervised by the Office of the Public Guardian (OPG), and the deputy must send a yearly report to the OPG explaining what decisions they have made and accounting for the money they have spent. The deputy can instruct a solicitor or accountant to prepare the annual report on their behalf.

We hope that this blog has answered some of the most common questions, however, if you have any specific questions, please do get in touch with our Court of Protection team to discuss your options and receive expert advice.


WAYS IN WHICH WE CAN ASSIST


  • Court Of Protection
  • Lasting Power of Attorney
  • Probate & Administration of Estates
  • Making a Will
  • Trusts


Call us today on 0208 515 2790

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What will happen to your digital assets if you pass away suddenly?

By Nasreen Akhter • January 20, 2025
What will happen to digital assets if you pass away suddenly? In today’s digital world, where most of us have multiple digital assets, it is important to put measures in place to protect these assets. A digital asset refers to any asset which you own and may have stored in a digital format. Typically, digital assets are accessed via an online account run by a third-party provider such as Facebook, Google, Apple, or Amazon. There are many examples of digital assets which you may own that are online. These are typically bank accounts, music libraries, email accounts, cryptocurrency, social media, gambling accounts, loyalty schemes, or sentimental photos and videos. Maintaining access to online accounts is essential for either financial or sentimental reasons. Thus, it is very important to plan what will happen to your online accounts when you pass. How can digital assets be protected? The tech industry is fast-paced and constantly changing, with new languages, frameworks, and tools emerging regularly. You may have multiple online accounts on various platforms. For each online account, we recommend that you should review the terms and conditions you agreed to when creating the account. Each account is likely to have specific terms on which assets can be administered on death or if there is no activity on an account for a long period of time the account might be terminated. We recommend that you should choose a digital executor to take over control of certain aspects of your account where the internet service providers (ISP) offer this facility. For example, Facebook allows you to nominate a legacy contact to turn your account into a memorial when you die. Google, on the other hand, allows you to nominate an Inactive Account Manager. This in turn allows the account to be closed or for the submission of requests for data from the account. You should make note of the fact that some ISPs will permanently destroy your digital assets after a period of inactivity or upon notification of your death. What will happen to your digital assets if you pass away without a will or have not mentioned the digital assets in your will? If you currently have a Will in place that does not provide for your digital assets upon death, then these are likely to form part of the residue of your estate and will pass to your residuary beneficiaries. If you don’t have a Will in place, then your digital assets will be distributed via the rules of intestacy which could risk your digital assets ending up in the wrong hands or being lost forever. Here is a link to a government website that explains the rules of intestacy: https://www.gov.uk/inherits-someone-dies-without-will What challenges will your relatives face when dealing with your digital assets? Relatives often face several issues when dealing with a relative's digital assets after their death: Access and Passwords : One of the primary challenges is gaining access to the deceased's digital accounts and assets. Without passwords or access credentials, it can be difficult to manage or close accounts. In order to remedy this administrative issue, it is important to keep a list of digital assets and login information in a secure place. Ideally, this should be alongside the will in a locked draw/safe. Furthermore, this should be updated regularly to avoid further issues. Such information should not be disclosed in the Will document as the Will becomes a public document once a Grant of Probate is obtained. Identification of Assets : Identifying all digital assets can be challenging, especially if the deceased did not maintain a comprehensive list. Digital assets can be spread across various platforms and devices. Ownership : Relatives performing the role of an Executor for the deceased’s estate will need to determine whether the deceased owned the object or if they had the required permission to utilise it during their lifetime. The information regarding the deceased’s ownership will likely be displayed in the terms and conditions of each digital asset. Legal Authority : Relatives may need legal authority, such as a grant of probate, to manage or transfer digital assets. This can be complicated if the deceased did not leave clear instructions or if the digital service providers have strict policies. Service Provider Policies : Different service providers have varying policies regarding the transfer or closure of accounts after death. Some may require specific documentation or legal processes. Privacy Concerns : There may be privacy issues related to accessing the deceased's digital communications or personal data, which can complicate the process. Valuation and Transfer : Determining the value of digital assets, such as cryptocurrencies or digital art, and transferring them to beneficiaries can be complex and may require specialist knowledge. Legal and Tax Implications : There may be legal and tax implications associated with inheriting digital assets, which can vary depending on the type of asset and jurisdiction. How can we help you plan ahead to protect your digital assets? At Ash Hill Solicitors, our experienced solicitors specialise in all areas of estate planning and Wills. We can assist in planning your digital legacy by providing comprehensive legal guidance and support in several key areas: Identifying Digital Assets : We can help you identify all your digital assets, including online accounts, digital currencies, and intellectual property, ensuring nothing is overlooked. Drafting Legal Documents : Our team can draft or update your will to include specific instructions for the management and distribution of your digital assets, ensuring these are legally binding and clear. Appointing a Digital Executor : We can assist in appointing a digital executor, who will be responsible for handling your digital assets according to your wishes. Access and Security : We can advise on secure methods to store access information, such as passwords and encryption keys, ensuring that your digital executor can access your assets when needed. Compliance with Laws : Our experienced solicitors ensure that your digital legacy plan complies with relevant laws and regulations, including data protection and privacy laws. Regular Updates : We are able to help you regularly update your digital legacy plan to reflect changes in your digital assets or personal circumstances. Dispute Resolution : In the event of disputes over digital assets, our team can provide legal representation and advice to resolve issues effectively. By working with Ash Hill Solicitors, you can rest-assured your digital legacy is managed according to your wishes, and that your digital assets are protected and transferred smoothly to your beneficiaries. Please access our downloadable free digital assets log: Click Here Further information The draft Property (Digital Assets etc) Bill proposes that digital assets can be the object of property rights in England and Wales. Please see the link below for further details: https://www.lawsociety.org.uk/topics/private-client/property-digital-assets-etc-bill Contact us Call us today so that we can assist you in securing your digital assets: 02085152790 or visit our website for further information https://www.ashhillsolicitors.co.uk/ .

What is a Lasting Power of Attorney?

By Nasreen Akhter • February 22, 2024
A Lasting Power of Attorney is an important legal document that lets you choose who would make decision on your behalf if you were unable to do so due to a sudden accident, illness, or long-term health issues. There are two different Lasting Powers of Attorney, one covers decisions regarding Health and Welfare and the other Property and Finance. The person for whom the Lasting Power of Attorney is created is called the donor and the people (or persons) nominated to make decision on behalf of the donor are called attorneys. How do I decide who to appoint as my attorney(s)? An attorney can be a relative, friend, spouse or civil partner, your child or even a professional. Ideally, they should be individuals who know you well and most importantly to appoint people who you trust. It is always useful to have more than one attorney as this allows checks to be put in place and provides reassurance to you and other members of the family. You can specify what decisions you are happy for your attorney(s) to make on your behalf. You can decide if your attorney(s) must act jointly on all matters or whether they can also act individually (severally). An LPA ensures that, should you be unable to manage your own affairs, the people you have appointed can manage your financial life on your behalf. This can save a great deal of money and will ensure that as a vulnerable person your affairs will be handled correctly. Risks of not having an LPA If you lose mental capacity without an LPA in place, your family must apply to the Court of Protection to have a deputy appointed to deal with everyday financial matters. This is a slow and expensive process. Contact us today for a free no obligation chat: www.ashhillsolicitors.co.uk Our Power of Attorney solicitors can help and guide you through this process to make sure your forms are correctly and accurately completed.

Why are there delays in obtaining grant of Probate and how to avoid them?

By Nasreen Akhter • January 9, 2024
Bereaved families in the UK are facing a significant financial burden as probate delays continue to accumulate significant costs and unpaid taxes, adding to the distress and emotional strain during an already difficult time. https://committees.parliament.uk/committee/102/justice-committee/news/198600/justice-committee-launches-new-inquiry-into-probate-amid-concerns-over-delays-and-consumer-protection/#:~:text=The%20waiting%20time%20for%20probate,take%20at%20least%20nine%20months. The waiting time for probate almost doubled from April 2022 to April 2023, with reports citing cases of probate taking more than eleven months and practitioners advising clients that probate will take at least nine months. Whether using online systems or the traditional paper process, applicants can now expect a lengthy wait of up to four months or more for probate to be granted. The backlog, a long-lasting result of the challenges created by the Covid pandemic, currently stands at around 40,000 applications, and shows no signs of improving, leaving many families uncertain of when or how they can find a resolution. What problems are caused by Probate delays? Delays in settling an estate can have serious financial consequences for beneficiaries. Here are some important things to consider: If Inheritance Tax is owed, the first payment must be made within the first six months after the death. HMRC will not issue a receipt to the Probate Registry until payment is received - https://www.gov.uk/inheritance-tax After six months, HMRC applies interest to any remaining balance - https://www.gov.uk/government/publications/rates-and-allowances-inheritance-tax-thresholds-and-interest-rates Properties with monthly service charges can incur additional costs due to delays. Vacant properties may require special insurance coverage. Waiting for probate to be granted can prolong the process of selling a property, potentially discouraging buyers. Having a current Will in place should help to ensure a smoother and more efficient probate process. How can these problems be solved? HMCTS is actively exploring various methods to enhance the efficiency and speed of its service. This includes a focus on improving IT systems and reducing paper applications. Digital applications, on average, are processed in less than half the time it takes to process paper applications.  However, irrespective of the application method chosen, gaining a Grant of Probate will always involve a significant amount of legal, tax, and administrative work, which can be time-consuming, and complex by its very nature. As such it is always wise to enlist the support of a probate specialist should you want to minimise the risk of complications causing a stoppage or compounding the existing processing delays. Call us today for a free no obligation chat.
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