Court of Protection
The Court of Protection was established to ensure the protection of the rights of people who lack the mental capacity to manage their own property, affairs or personal welfare. The Court of Protection can decide whether they have the capacity to make a decision for themselves - and if the Court concludes that they do not, it can appoint individuals (for example, family members) to make decisions on financial or welfare matters on their behalf. Those who are appointed are referred to as Deputies. The Court of Protection can also decide on the validity of an Enduring Power of Attorney (“EPA”) or a Lasting Power of Attorney (“LPA”).

The Office of Public Guardian
The Office of Public Guardian is the administrative arm of the Court of Protection which deals with the registration of Enduring Powers of Attorney and Lasting Powers of Attorney. Where someone has an Enduring Power of Attorney and is becoming or has become mentally incapable of managing their affairs, the appointed Attorney has a strict legal obligation to register the Enduring Power of Attorney.

The Attorney has no ability to act for the person once they have concluded that the person has become incapable. Attorneys only have a limited ability to act once the Enduring Power of Attorney has been registered with the Office of Public Guardian. Full powers under the document are reinstated once the registration has been finalised. A Lasting Power of Attorney can only be utilised by the Attorneys if it has been registered with the Office of Public Guardian. Even then, a Welfare Lasting Power of Attorney cannot be used unless the person who has made the document is deemed mentally incapable.

Attorneys and Deputies
Someone may have been appointed to manage the financial and welfare affairs of another (the “Donor”) either pursuant to a Power of Attorney (and thus referred to as an “Attorney”) or pursuant to a Court of Protection Deputy Order (and thus referred to as a “Deputy”).

When an Attorney or Deputy assumes complete responsibility of a Donor’s finances, the Donor will probably be unable to manage his or her finances themselves. Managing another person’s finances, as well as dealing with your own day-to-day tasks and finances, can be an onerous task. The Court of Protection requires a Deputy to complete Accounts each year in respect of their dealings with the Donor’s finances. This, in itself, can be a difficult task. Attorneys should keep detailed Accounts of their dealings of all the finances of the Donor, so that if they are ever called to account by the Court of Protection the informative Accounts are to hand.

W. Davies’ Private Client Department Solicitors would be pleased to assist a Deputy or an Attorney to establish and implement Accounts or to audit any Accounts which they have themselves prepared - with the aim of affording the Attorney or Deputy appropriate protection from third parties. We can also advise you on your duties as an Attorney or Deputy.

For more information about this please contact Alexandra Milton on akm@wdavies.com or Fiona Gould on feg@wdavies.com