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Action for Brain Injury Week

17th May 2021

Action for Brain Injury Week

Mark Parsons, Professional Support Lawyer in the Personal Injury team, examines the role the Court of Protection plays when someone loses mental capacity through a brain injury.

The role of the Court of Protection is not widely understood, but it is often an important safeguard when someone loses the capacity to make their owndecisions.

Section 2 of the Mental Capacity Act 2005 says that “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Under the Act, someone could make decisions on your behalf relating to your healthcare and medical treatment, and/or welfare and personal care.  It may also be necessary for someone to make financial decisions on your behalf, covering matters such as using a bank account and credit cards, getting a loan or paying bills and household expenses.

At Higgs & Sons, we have extensive experience in helping people who have suffered a severe traumatic brain injury. When someone suffers an injury of this kind, they often will lack sufficient mental capacity to bring their own claim.  The capacity to litigate refers to a person's ability to understand, engage in, or follow litigation proceedings.  If this is the case, a close family member usually agrees to act as their litigation friend and make all the decisions in the claim, acting in the best interests of the injured person. 

A Court is not usually involved in the appointment, though when Court proceedings become necessary the litigation friend must then file a certificate at Court, to confirm their appointment.

A litigation friend though is only responsible for the injured person’s claim so, if they also lost mental capacity to make their own financial and healthcare decisions and did not appoint an attorney before the brain injury to take over their financial affairs, these fall to the Court of Protection.

Whilst the Court of Protection ultimately is responsible to manage the financial and welfare affairs of people with no mental capacity, it delegates the day-to-day decisions to a Deputy. A Deputy is appointed by a Court order which details the extent of the Deputy’s powers over the protected person’s financial affairs. 

The Deputy can be a family member, but the Court often prefers to appoint a professional Deputy.  When making decisions the Deputy will consult the family but will always act in the best interests of the protected person. As the protected person will lack the capacity to make or update an existing will, the Deputy can also apply to the Court of Protection to put a suitable will in place. 

A professional Deputy’s charges and those of anyone else caring for the protected person are paid for from the person’s own assets, but in most cases these charges can be recovered in the compensation claim.  However, when 100% awards of compensation are not possible a Deputy will have to make difficult decisions on how the assets can best cover the protected person’s needs.  Where appropriate they ensure that the NHS and Local Authority properly assess the protected person’s health and social needs and, if necessary, appeal their decisions.

The role of the Court of Protection and a Deputy are generally not very well known.  However, at Higgs & Sons we are experienced in acting as a Deputy for people with brain injury and ensure that the family of a brain injured client understand and are included in any important decisions which have to be made, to protect the client’s best interests.  So, if you or a loved one has lost mental capacity through a brain injury, please contact us to see how we can help you.

 

 

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