Managing Finances after Brain Injury

Transcription

1 Managing Finances after Brain Injury

2 After a brain injury a person may lack the ability to manage their financial affairs permanently or temporarily. The law makes a number of provisions for these situations and this area of the law is overseen by the Court of Protection. What is the Mental Capacity Act for? The Mental Capacity Act (MCA) supports people to make their own decisions. It also gives legal protection if someone else has to make a decision for a person who lacks the capacity to make the decision for themselves. The Act provides guidance on how to decide if someone has capacity to make their own decisions.

3 What assumptions does the Act make? The Act assumes the person continues to have capacity to make decisions unless there is strong reason to believe otherwise. The Act states that a person may have the capacity to make one sort of decision but may lack the capacity to make another sort of decision. For example they could have the capacity to make decisions about their hospital treatment but lack the capacity to manage their finances. Who decides if someone has capacity to manage their finances? Ultimately only a court can decide but the courts normally take advice from health professionals so ask those involved with your family member. What conditions does the Act make? Anything done for, or decided on behalf of a person who lacks capacity must be done in their best interests. Anything done for, or on behalf of a person who lacks capacity should be the option that least restricts that person s basic rights and freedoms but it must still be in their best interests. Managing Finances after Brain Injury

4 How do you decide what is in the person s best interests? The person s past and present wishes and feelings, beliefs and values must be taken into account. Any written statements previously made by the person must be taken into account. Anyone who has been named by the person lacking capacity as someone who should be consulted, must be this might include a friend, relative or advocate for example. The views of others who have an interest in the person s welfare, such as close relatives, friends, or staff providing support to the person must be consulted. The views of the person concerned must be taken into account even if they lack the capacity to make the decision.

5 Can anyone else manage someone s financial affairs if they are unable to? It is important to remember that outside of the arrangements below no-one else has the right to make financial decisions on behalf of someone who lacks capacity, regardless of their relationship to them. However, if you have a joint account or jointly own property with someone who lacks capacity you can still control these in the normal way. If you sell the property remember that the person who lacks capacity will still have a right to 50% of the proceeds. Lasting Power of Attorney (LPA) this enables a person to appoint someone (called an Attorney) such as a close relative to make certain decisions (which could include financial ones) on their behalf they can choose whether they want the Attorney to make decisions when they still have capacity or only when they don t have capacity. However they cannot appoint an Attorney if they do not have the capacity to do so. Managing Finances after Brain Injury

6 General Power of Attorney can be used where a person has the capacity to understand that they are giving someone else the power to manage their affairs and the implications of this. The Court of Protection can appoint a Court appointed Deputy who then has the power to make financial decisions on someone s behalf if they lack capacity. The Deputy is accountable to the Court and it charges fees for this. Appointeeship - Someone can be nominated as an appointee of the Department of Works and Pensions (DWP) and have the power to manage a person s welfare benefit payments, when the person does not have the capacity to do so themselves. Appointees are covered by different laws but must follow the MCA principles. You need Form BF56 to apply for this.

7 Trusts For those who have received money in compensation for their brain injury the Court of Protection can allow the family along with a professional to manage the person s money. This is known as a Trust and the family members and professional appointed by the Court become Trustees. Many families benefit from the flexibility and extra protection a Trust allows. Being a Trustee is a responsible role and the Trustees are accountable to the Court. Enduring Power of Attorneys (EPAs) created prior to the MCA can still be used (LPAs replaced EPAs). The EPA must be registered with the Court of Protection when the attorney thinks the donor lacks capacity. Further information can be found at the following websites: Managing Finances after Brain Injury

8 A European leader in traumatic brain injury rehabilitation The Brain Injury Rehabilitation Trust has been providing excellence in brain injury rehabilitation for 20 years. Our range of services is designed to meet the needs of people at each stage of rehabilitation - from assessment to intensive rehabilitation, continuing rehabilitation, through to community-based support. BIRT wishes to express its grateful thanks to Stamp Jackson and Procter Solicitors for their sponsorship of this leaflet. Stamp Jackson and Procter Solicitors 5 Parliament Street Hull HU1 2AZ Tel: Fax: nrh@sjplaw.co.uk Brain Injury Rehabilitation Trust (BIRT), 60 Queen Street, Normanton, Wakefield WF6 2BU Tel: info@birt.co.uk BIRT is a division of The Disabilities Trust, Registered Charity No , and is the means by which it provides its brain injury services The Disabilities Trust