It is not uncommon for individuals to lose the ability to make
decisions for themselves; this could be due to a mental health
condition, a severe learning difficulty, or a sudden accident. If
you are affected, either directly or indirectly, specialist lawyers
within our Private Client Services group can help you to ensure
that your affairs and those of family or loved ones are properly
taken care of at a time when you (or they) are at their most most
We can assist with a host of issues arising out of the loss of
mental capacity, which will fall into one of the following areas of
powers of attorney
A power of attorney is a legal document that enables a person
(known as the donor) to give another person (known as the attorney)
the legal authority to manage the donor's lifetime affairs. It is
an extremely useful document, which could save you and your family
a great deal of cost, delay and distress.
There are a variety of reasons why someone you trust might need
to make decisions for you at different times in your life. It may
be that, at some point in the future, illness or old age will mean
that you are no longer able to manage your affairs. A power of
attorney enables you to plan for this eventuality by nominating a
loved one to step in and handle things for you. Alternatively, if
you are out of the country for extended periods of time, you may
need someone to make decisions for you in your absence.
Importantly, mental capacity is not just something for older
people to consider. Young or old, life throws up surprises that
catch us unprepared and can leave us unable to deal with the
consequences. Powers of attorney are powerful documents, and there
are a number of different types available. If you are thinking of
entering into one, we recommend that you take our professional
advice from the outset, so that you can be sure that the document
you sign is properly drafted and fully reflects your wishes.
At Blake Lapthorn solicitors we can assist with all aspects of
mental capacity, including advice on:
- drafting and registering lasting powers of attorney
- registering existing enduring powers of attorney with the
Office of the Public Guardian
- how to deal with a person’s affairs through the Court of
Protection should no power of attorney be in place
- preparing a statutory Will at the request of the Court of
Protection for an individual who lacks capacity
- settling personal injury awards through the Court of
Protection in cases where incapacity results from a serious
accident or from medical treatment
- making gifts to friends and family on behalf of an
- care issues for the elderly
- managing the consequences for a business if a director and
business partner suffers a loss of capacity and becomes unable to
manage their responsibilities within the business.
For further information on powers of attorney see our client information
Court of Protection
If a person who does not have an enduring or lasting power of attorney in place
becomes unable to manage their own affairs due to lack of mental
capacity, it may be necessary to appoint a deputy for them. A
deputy is a person appointed by the Court of Protection to manage
the affairs and make decisions on behalf of the incapacitated
Deputyship applications are usually required where all of the
- a person is incapable of managing their affairs due to mental
- they have no enduring or lasting power of attorney
- they have assets that need to be used for their benefit and/or
assets over £10,000.
For further information on Court of Protection see our client
At Blake Lapthorn solicitors we are able to provide help and
advice about applications to the Court of Protection for the
where there is no dispute ('non contentious')
- the appointment of a deputy and management of the patient's
- making gifts on behalf of the patient
- making a Will on behalf of the patient
- seeing awards from personal injury claims into
where there is a dispute ('contentious')
- disputes over the registration of enduring or lasting powers of
- disputed applications for statutory Wills
- disputes over the appointment of deputies for persons who have
- disputes arising from the conduct of a deputy appointed for
someone who has lost capacity.
personal injury trusts
The main cause of mental incapacity is dementia which often, but
by no means always, occurs in old age. Another common cause is
injury which often results from serious accidents or poor
medical treatment. In these circumstances, it may be possible to
claim compensation through personal injury litigation.
Our team of specialists is able to guide you through such a
claim. It may be possible to obtain interim payments to assist with
any alterations to your property or to enable you to move
residence. It is also important to ensure that an appropriate care
regime is in place to enable the injured individual to live as
independently and as full a life as possible. We can provide expert
assistance with setting an appropriate care and therapy regime.
The personal injury or clinical negligence compensation awarded
may be substantial and require special treatment, either through
the involvement of the Court of Protection or
through a trust arrangement. Every person who receives such
compensation should consider setting up a personal injury trust as
it can help you manage your finances and safeguard the value of
your compensation award. A personal injury trust is set up to hold
your compensation award on your behalf and for your benefit.
Few people realise the full effect that a compensation award
will have on their financial circumstances. A personal injury trust
is particularly beneficial for people who:
- are currently entitled to means-tested state benefits or may
need to claim such benefits in the future
- currently require care at home or live in residential care
because of their injury
- may in the future require care at home or need to live in a
residential/nursing home because of their injuries or old age
- require help and assistance managing their day to day
Without a personal injury trust in place, your compensation
award is very likely to mean that you will not be entitled to
means-tested benefits and that you may have to pay for your own
care with only limited assistance from the state.
We can provide expert advice on which type of trust is most
suitable for your needs, who you should appoint as your trustees,
and how the trust can be managed to ensure that your compensation
is only used for the purposes you intended and for your benefit.
Where possible, you would be included as one of the trustees and,
if a professional person is required or desired, partners here at
the firm can act as one of your trustees.
If the personal injury trust requires Court approval, due to the
mental incapacity of the injured person or because they are under
18, our specialists in this area can make the necessary application
to the Court of Protection.
We can advise on the creation of the personal injury trust and
also the ongoing management and administration. Furthermore, whilst
we cannot give financial advice, we can put you in touch with an
independent financial advisor to ensure that your compensation is
properly invested. As Blake Lapthorn provides a complete legal
service we can also assist with any related matters such as
taxation or the
and purchase of property.
For further information or to talk to someone about a
specific matter, please contact a team member in the
office nearest you:
Brooks, partner and head of Private Client
Services group in our Portsmouth office, on 023 9228
2714 or at email@example.com.
Antoniou, partner in our Oxford
office, on 01865 254286 or at firstname.lastname@example.org.
associate in our Southampton and Portsmouth offices, on 023 8085
7282 / 023 9228 2775 or at email@example.com.
Smith, partner in our London
office, on 020 7814 5438 or at firstname.lastname@example.org.
Alternatively, email our general enquiries helpdesk