When is the Court of Protection needed?
When someone suffers a severe traumatic brain injury they will often lose the mental capacity to make their own financial decisions. In such circumstances, when the life-changing injury was unexpected, the injured person will rarely have already appointed an attorney to take over their affairs. So it falls to the Court of Protection to make financial decisions in the best interests of the injured person.
Who is a Deputy?
Whilst the Court of Protection has ultimate responsibility to manage the financial affairs of people who lack mental capacity, it delegates the day-to-day decisions to a Deputy. A Deputy is appointed by a Court Order which also details the extent of the Deputy’s wide-ranging powers over the protected person’s financial affairs.
Who can be a Deputy?
The Deputy can be a family member, but due to the high level of responsibility and the onerous annual reporting to the Court of Protection, the Court often prefers to appoint a professional Deputy. Here at Head Injury UK we have a dedicated solicitor who is an experienced Deputy for head injury victims.
Duties and Charges
When making decisions the Deputy will liaise with the family, but the Deputy’s overriding legal duty is always to act in the best interests of the protected person. A professional Deputy’s charges along with those of anyone else caring for the protected person are paid from the person’s own assets, but in most cases these charges can be recovered in the claim for compensation. Additionally, as the protected person will lack the capacity to make or update an existing will, the Deputy can apply to the Court of Protection to put a suitable will in place.
In cases where 100% awards of compensation are not possible the Deputy will have to make difficult decisions on how the assets can best cover the protected person’s needs. The Deputy where appropriate will therefore ensure that the NHS / PCT and Local Authority will properly assess the person’s health and social needs and, if necessary, appeal to the Health Service Commissioner / Ombudsman.
Including the Family
The role of the Court of Protection and a Deputy are generally not very well known, so we at Head Injury UK ensure that the family of a brain injured client understands and is included in any important decisions which have to be made to protect the client’s best interests.