Court of Protection and services related to Vulnerable People

Frequently Asked Questions

• What is a vulnerable person?

  When someone is unable to make a decision, the term “mental incapacity” may be used. In legal transactions lawyers will focus on whether someone has legal capacity to enter into the transaction.

  A person who lacks mental capacity may be a vulnerable person, but it does not follow that a vulnerable person lacks mental capacity. A person who is vulnerable may be in need of extra support. They may also be unable to take care of themselves or protect themselves from harm.

  A vulnerable person is someone who, because of their circumstances, may be at an increased risk of harm. There are many reasons a person may find they are more vulnerable, this could be due to a disability, illness, age or the circumstances they are in such as experiencing a bereavement, social isolation or poor education.

  4 key drivers of vulnerability are:

  • health – illnesses or general health conditions that affect the ability to carry out day-to day tasks.
  • life events – such as bereavement, job loss or relationship breakdown
  • resilience – low ability to withstand financial or emotional shocks
  • capability – low knowledge of financial matters or low confidence in managing money. Low capability in other relevant areas, e.g. literacy or digital skills.

  Someone’s vulnerability can also be caused by a diagnosed condition such as dementia, learning disabilities, mental health problems or an acquired brain injury.

• Vulnerability and dementia

  Each person is unique and will experience difficulties in their own way, for example, how fast dementia progresses, the type of dementia they have, the support and stimulation they receive and the treatment they receive.

  Although dementia is progressive, so that symptoms will gradually get worse over time, people with dementia can live well and make decisions with support

• How can we help?

  We are experienced in advising vulnerable or older clients, their families or support network on various aspects.   For example:
  • making a will
  • estate planning
  • making powers of attorney
  • applying to the Court of Protection for deputyship orders or other orders concerning financial and property matters
  • applying to the Court of Protection in relation to health, care and welfare matters
  • advising on safeguarding concerns
  • providing advice to attorneys or deputies
  • assisting with day-to-day financial affairs or specific financial affairs
  • creating and administering personal injury trusts and disabled person’s or vulnerable person’s trusts
  • advising on care and nursing fees (either at home or in a residential setting
  We can also provide advice about protecting vulnerable people.
  Parents and families of children with a vulnerability, such as a physical, mental or learning disability or an addiction, may have concerns about that child’s future and how they will cope when immediate family are no longer around.
  If you are thinking of leaving an inheritance to a vulnerable person it is sensible to get legal advice about the impact this inheritance may have. Will the beneficiary be able to manage the inheritance? Will it make them more vulnerable to the attentions of a third party putting them at risk of financial abuse? Will it affect the state benefits they receive? Even a small lump sum inheritance can affect entitlement to benefits.
  It is possible for an inheritance to be left in a trust in your will, under the terms of which the vulnerable person can benefit. It is advisable that the trust is administered by responsible and trusted trustees, which can be family members, friends or professionals chosen by you. The types of trust that we can advise on to help protect assets for vulnerable people are:
  • discretionary trusts
  • disabled person’s or vulnerable person’s trusts
  • bereaved minor’s trusts
  • age 18-25 trusts

  We provide specialist clear advice to suit your needs. Our wills are accompanied by a commentaries, which explain the terms and general taxation implications of the will and any associated trusts. We can prepare ancillary documentation such as a letter of wishes which provides guidance to your trustees and can include matters you would like them to consider in administering the trust, for example, how you would like them to use the income and capital of the trust for the vulnerable beneficiary, specific details about the needs of the vulnerable beneficiary and how you envisage the trustees protecting trust assets for the vulnerable beneficiary.
  Appointing guardians in your will
  Parents will likely wish to include the appointment of a guardian or guardians in their wills, in event of them both dying before their children reach 18. Appointing guardians you approve of and trust to take care of your children will give you peace of mind..
  Guardians will take over the welfare and responsibility of a child if there is no one left with parental responsibility for the child. They can be appointed in a written, signed and dated statement, but are more commonly appointed in a will.
  If there is no surviving parent with parental responsibility and no appointment of a guardian has been made, the child will become the responsibility of the court and the court will decide on who will become the guardian or guardians.
  Following the deaths of both parents, it is often the case that the estate of the second to die is held on trust for the children. We can provide you with advice about how to leave your estate to benefit your children until you think they will be old enough to sensibly manage it themselves. We will discuss your requirements and the trusts you can incorporate in your wills (such as bare trusts, age 18-25 trusts and bereaved minors trusts). Before the children become entitled to capital, the trustees usually have statutory or express powers to apply the income and capital of the estate for the benefit of the children. These powers commonly allow the trustees to pay a child’s expenses (such as maintenance and school fees) directly to the child or to pay funds to a guardian to use for the child’s benefit.
  We can also provide advice relating to your will and guardianship if your relationship breaks down, for example if you separate, divorce or dissolve your civil partnership.