A question of capacity - what happens if someone regains mental capacity?

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We recently published an article on the Brain Injury Group’s website looking at what happens when someone regains the mental capacity needed to manage their property and affairs. Written by Hyphen Law Associate Solicitor Elizabeth Metcalfe, the article outlines the implications for Deputies who, up until that point, have made all those important decisions for them. 

What is capacity?

As a specialist Court of Protection law firm, many of the people we support lack the mental capacity required to manage their property and financial affairs because they have sustained a brain injury after an accident or negligent medical care. But it is important to note that capacity can change over time and it can also be recovered.

The capacity to decide things for yourself is something that we all take for granted. It is defined as the ability to understand and retain information which is relevant to the decision, to weigh up the pros and cons of various options before deciding and then having the ability to inform others about the decision you have reached.

When a person (‘P’) is deemed to have lost capacity to manage their property and affairs, it is often appropriate to make an application to the Court of Protection to have a Deputy appointed to make the financial decisions which they are unable to make.

This can include decisions about a multitude of things including buying and selling property, ensuring rent and bills are paid on time, authorising and paying for rehabilitation professionals, ensuring there is enough funds to cover day to day living expenses, and many more.

Regaining capacity

However, capacity can fluctuate or be recovered and it is possible that over time and with the right support from their Deputy, Case Manager and care professionals - P may, in some cases after many years, regain their capacity to successfully manage their own property and affairs on a long-term basis and without the assistance of their Deputy and the Court of Protection.                          

In these situations, it is no longer appropriate for the Deputy to act on their behalf and the Deputy must take the necessary steps to have P discharged from the Courts care.

Next steps after regaining capacity

If P is considered to have regained capacity, it will be necessary to make an application to the Court of Protection asking for a formal discharge.

The Court will need evidence that P has regained capacity so the first step towards discharge will be a mental capacity assessment which will be carried out by a doctor, neurologist, case manager, social worker, or another suitably qualified assessor.  If they are satisfied that P has regained capacity, they will need to complete a COP3 form (Court of Protection Assessment of Capacity Form) and this will be sent to the Court with a formal application for discharge.

If there will be significant funds to manage after the discharge the Court will want to know what is going to happen to those funds and how they will be managed. In the case of funds which have come from a personal injury award it will be important for P to understand and consider the implications of those funds being held in their name, rather than their Deputy’s.

Funds from a personal Injury settlement held by a Deputy will have been disregarded when assessing P for any means tested benefits or statutory funding such as care funding from their local authority. However, this protection will be lost if P is discharged from the Court unless it is held within a personal injury trust.  Funds held within a PI Trust still belong to P and are there to be used for their benefit, but they will be disregarded for means testing and the protection of the trust can bring many other benefits as well. You can read more about personal injury trusts here.

If there are large sums to manage professional trustees such as a solicitor may be appropriate either working with other professionals, with P or a close friend or family member as a fellow trustee.

Life after the Court of Protection

P can feel overwhelmed about the prospect of having access to their funds without support and the responsibility of managing their own property and affairs, this is entirely normal.  It may be something they have wanted to do for a long time, but it can be daunting when it happens and P may still require help and advice on how to manage their finances effectively once they have been discharged from the Court of Protection and it is not uncommon for them to retain the service of the financial advisor who has supported them and their Deputy or the professional who has previously acted as Deputy on their behalf.

While regaining capacity may be the ultimate goal for P and their family, any discharge application should be approached with care to ensure that P is able to make a successful transition towards independence and managing their own affairs.  

We are always delighted to support our clients on that journey to independence where appropriate and have been pleased to do so on many occasions.

For more information about Court of Protection deputyship matters or Personal Injury Trusts, contact the Hyphen Law team on 0845 160 111, email info@hyphenlaw.co.uk or complete our online enquiry form.