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Mental incapacity is on the rise. We have an aging population and instances of Alzheimer's, dementia, and Parkinson's are on the increase. So, where do you stand if the worst happens and a loved-one loses the mental capacity to be able to look after their own property and financial affairs?
If no prior planning has taken place (ie no enduring or lasting power of attorney has been made) you will need to turn to the Court of Protection for assistance. A Court application will need to be made for the Court to decide who should deal with the property and financial affairs in the future.
In this regard, the Court will require you to provide full details of the financial information of the individual (bank balances, property valuations, details of any debts, details of income, etc) and a medical assessment of the individual will need to be carried out to determine his/her level of mental capacity. There is a Court application fee of £400, although it is possible to apply for remission or reduction of this fee in cases of financial hardship.
You must give written notice of your application to the individual concerned, and the individual can take their own independent legal advice, can object to the proceedings, or can be joined to the proceedings. You must also inform other family members of your actions and they can contact the Court in support or to object.
The Court process can be quite slow and it is not unusual for such applications to take several months to be decided. Once the Court have considered the application they will make an Order which they feel is in the best interests of the individual concerned. They will usually appoint a Deputy to deal with the property and financial affairs of the individual and this can be the person who has started the application process, or a person of the Court's choice if for some reason the applicant is not suitable (if, for example, other family members have objected). In these instances a professional Deputy may well be appointed.
Once a Deputy has been appointed, that person will then have access to deal with the property and financial affairs of the individual concerned. They must always act in the best interests of the individual concerned and must involve the individual themselves as far as is possible.