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Power of attorney, court of protection & capacity
There may come a time in all our lives where we need others to act for us and make decisions on our behalf, whether temporarily or for the longer term. It is important that individuals are fully aware of the benefits, implications and potential risks before enabling others to make decisions for them legally.
Power of Attorney
Power of Attorney documents allow you to choose the person or people you would want to make decisions concerning your property and financial affairs, health and welfare should you ever lose capacity (mentally or physically) to make these decisions for yourself.
These can also be tailored to address specific issues such as the sale of a particular property, business assets or where, say, Trusts are concerned. Where Power of Attorney documents are being prepared to address health and welfare decisions, wishes concerning specific treatment can also be accommodated.
Power of Attorney documents can be invaluable in transactional matters to avoid delays and cost where interested parties are on holiday or out of the country for a period of time.
Due to their importance, the powers they convey and their necessity, we recommend that these arrangements are reviewed on a regular basis to ensure that they still comply with your wishes and taking into account changes in the law.
We are adept in advising both Donors and Attorneys on the many types of Power of Attorney and can oversee the preparation of these documents personalised to your needs.
In appropriate circumstances, and when requested to do so, we can also act as professional Attorneys.
Court of Protection applications
The Court of Protection is the only court in England and Wales which presides over matters concerning the property, financial affairs and personal welfare of people who lack the mental capacity to make such decisions for themselves.
Applications may need to be made to the Court of Protection for a multitude of reasons. Commonly, these may be in instances where a person has not made Powers of Attorney but has since lost mental capacity and decisions need to be made regarding their property and financial affairs, health and welfare.
Applications can also be made to the Court of Protection to assist with the preparation of Wills (known as Statutory Wills) and in technical matters where capacity affects other arrangements, such as Trusts and property related matters.
We assist clients in making new applications to the Court of Protection and also provide guidance and advice to Deputies appointed under existing orders.
In appropriate circumstances we can also act as professional Deputies.
Incapable Trustees
Where a Trustee no longer has the requisite capacity to act as as a Trustee or is perhaps failing to meet their obligations and duties, steps may need to be undertaken to resolve matters.
Often, such issues can be avoided through effective advice and preparation at the outset when Trust arrangements are first put in place. Appropriate legal advice at that stage is therefore crucial.
The majority of our lawyers are fully accredited members of the Society of Trust and Estate Practitioners (STEP) with many years’ experience handling Trust matters meaning we are best placed to advise clients in connection with Trusts where capacity is an issue.
We assist when needed in applications to the Court, including the Court of Protection to address the issue of incapable Trustees.
Our team can advise you on:
- Lasting Power of Attorney
- Business Power of Attorney
- General/Ordinary Power of Attorney
- Enduring Power of Attorney
- Trustee Power of Attorney
- Court of Protection applications
- Statutory Wills
- Living Wills and Advance Decisions
- Professional Attorneys and Deputies
- Incapable Attorneys, Deputies, Trustees and Executors
- Capacity related issues and disputes
Key contacts in power of attorney, court of protection & capacity
Jennifer Quayle (TEP)
Jennifer Quayle is a Director and solicitor in our Private Client Team
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Daniel Williams (TEP)
Daniel is a Director and a solicitor in our Private Client and Farms & Estates Teams
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