In most cases the answer to this question is to have their capacity assessed by a qualified health professional and a formal written statement obtained.
If it is found that they do indeed lack capacity then an application to the Court of Protection to have someone appointed as their Deputy will be necessary.
Deputyship applications are heard by the Court of Protection and can be complex, time consuming and expensive. A detailed analysis of the person in question’s assets, current and future needs and medical evidence are required. As an example, the Court sets a set minimum fee for solicitor’s costs for a Deputyship application at £850.00 plus VAT, there is also an application fee of £400.00 at the outset and an appointment fee of £125.00 payable to the Court once the application has been finalised. Due to the amount of work involved with an application in a majority of cases the solicitor making the application will ask to have their costs assessed by the Court.
Most importantly for you and your family at a time of great distress an application will usually take between four and six months to be considered; all the while no one is entitled to deal with your loved ones assets, make decisions regarding any business interests that they have or their health and welfare.
However, if they are deemed to have the requisite capacity the best solution is to create a Lasting Power of Attorney (“LPA”) while they remain in good health. LPA’s are generally cheaper, less complicated and can be used as soon as they are registered with the Office of the Public Guardian and will be available to be used should their capacity deteriorate at any future date.
PLS Solicitors specialise in advising on the complex area of family law, especially Wills, Trusts and Probate. We offer a friendly, efficient and effective legal advice on any area of family law.
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