Court of Protection Property & Affairs
‘ Jemma is very professional and is trusted by her clients who respond to her enthusiasm, sympathetic attitude and warm personality. Jemma has successfully helped appeal various benefits and has added real value to her clients’ lives that have to deal with challenging circumstances and special needs.’
Supporting Clients. Protecting Assets. Changing Lives.
At EMG Solicitors we have a dedicated Court of Protection team who specialise in helping individuals who, for various reasons, lack the capacity to manage their own financial affairs or make informed decisions about their health and welfare. We have one of the largest independent teams in the UK and we work closely with our clients, their family members and loved ones to ensure that our clients’ best interests are taken care of and that they have the right professional help in place to make important decisions about finances and care. When a person has been assessed as lacking capacity, they are generally unable to appoint an attorney to act on their behalf under a Lasting Power of Attorney and the Court of Protection will need to be involved. In such cases a deputy will be appointed by the court who will be in charge of managing the property and affairs of the person.
Professional Deputyships When someone becomes mentally incapable of handling their financial affairs or making personal welfare decisions, and they have not created a Lasting Power of Attorney prior to losing capacity, it is necessary to appoint a deputy to manage those affairs and make important decisions on their behalf. Deputies must be over 18 and they must be of sound character (therefore criminal convictions and bankruptcy may impede an application). It is also an expectation that the proposed deputy will have a close connection to the incapacitated party, or that they will be a qualified professional. The first port of call is to see if a close friend or relative of the person is able to act. This is often sensible in cases where limited decisions need to be made, where there is consensus amongst family members about treatment or financial decisions or where the person’s assets are of a limited value and fairly straightforward in their management. There are certain situations where it may be more appropriate for a professional deputy (usually a solicitor) to be appointed, instead of a family member and here at EMG Solicitors we are specialists in providing professional deputyship services.
Expert Witness and Professional Deputyship Litigation Services Directors, Emma Gaudern and Jemma Morland are often instructed by lawyers acting on behalf of both claimants and defendants to provide an expert witness statement, in both personal injury and medical negligence cases, detailing the costs of a professional deputy to act throughout the lifetime of the claimant. We are respected experts within the field of Court of Protection costings because we use fair and accurate assessments, based on real client case studies and costs. EMG Solicitors are often instructed by claimant lawyers, acting in both personal injury and medical negligence cases, to act as a professional deputy in order to manage either an interim payment or potential settlement monies that have been, or are due to be, paid for the benefit of an incapacitated Claimant. We are highly experienced in all aspects of pre and post settlement deputyship administration. We keep detailed records of all income and expenditure (including copy invoices and receipts) which will help prepare the right figures to put into a schedule of loss, saving the litigation team time, and we will properly quantify the Court of Protection fees that should be payable in a specific case, given the claimant’s personal circumstances.
Supporting Clients. Protecting Assets. Changing Lives.
Personal Injury Trusts When you have been awarded compensation as a result of a personal injury claim, your entitlement to claim means-tested benefits, tax credits and state funded awards and services can be affected unless it is paid into a personal injury trust or held by a deputy appointed by the Court of Protection. If you are capable of managing your finances and affairs and you have received personal injury compensation, our experts can offer you the peace of mind that your finances are secure with a personal trust service to guide you through the legal and procedural requirements. We will not only draft the necessary trust deed but we will supply explanatory documents and summary sheets and we can also liaise with the Department for Work and Pensions or other statutory agencies on your behalf, including in relation to an appeal. If you require, or would prefer, the involvement of a professional trustee we would be more than happy to assist.
As your professional trustee, we ensure your finances are secure and that they are monitored and administered effectively. We explain technically complicated things in an easy to understand way. We will help you through the entire process, allowing you to use your compensation as it was intended and hopefully improving your quality of life following your injury. As experts in the long-term management of damages awards, EMG Solicitors treat clients fairly and provide access to life-long practical solutions.
Lasting Power of Attorney
Statutory Wills
A Lasting Power of Attorney governs who will manage your affairs and make decisions on your behalf in the event that you lose the capacity to do so yourself. A Property and Affairs LPA allows you to authorise people to manage your financial affairs for you. The people you choose to appoint under a LPA are called your attorneys and they are usually a trusted family member or friend but at times it may be appropriate to appoint a professional. We can act as professional attorneys if necessary. Our team includes LPA specialists who can prepare the Lasting Powers of Attorney for you and can ensure they are properly registered, so if and when the time comes when you’re unable to manage your affairs, you can be safe in the knowledge that your appointed Attorneys will be able to do so on your behalf.
Most people will make a Will during their lifetime so that they can dictate how their estate ought to be divided upon their death. Anyone over the age of 18 can make a Will provided they have ‘testamentary capacity’. Testamentary capacity essentially means that the person making the Will must understand: the nature and effect of making a Will in the terms they have proposed; what they own and roughly what it is worth; and the claims of those who might expect to benefit from the Will, including those who are being excluded. If someone does not have the mental capacity to make a Will, an application can be made to the Court of Protection for a Will to be made on their behalf. This needs to take place even if a Deputy is already in place, as they have no authority to sign a Will on behalf of the person whose affairs they manage. This type of Will is called a Statutory Will and our team are specialists in advising on these applications.
Supporting Clients. Protecting Assets. Changing Lives.
Lay Deputyship Services Where a family member or friend is looking to act as a deputy for their incapacitated loved one, we can provide support every step of the way from making the application to the Court of Protection to be appointed as a deputy, through to providing assistance with carrying out the day to day duties of a deputy, including completing the annual deputy’s return that needs to be filed. We can offer advice, support and guidance to help lay deputies undertake their role effectively and confidently, whilst adhering to their Court ordered responsibilities. We are also able to advise and support you through any subsequent Court applications or Office of the Public Guardian enquiries and investigations.
‘I would have no hesitation in giving this firm 100% for level of service. They are professional and friendly whenever I contact them and the knowledge this firm has is excellent, they have always given accurate advice to whatever question I have asked or help I have needed, they know the processes within the Court of Protection and give excellent advice guiding me through these procedures. They know their business inside out. They work as a team, so whoever you speak to is able to help, you do not get passed about and each member of the team is very knowledgeable. I would rate them as excellent value for money.’ Mrs KM
Mental Capacity & Court of Protection Disputes A person must be assumed to have capacity to make their own decisions unless it has been shown that they lack capacity around a certain issue. Capacity is specific to both the decision at hand and the time that the decision is being made. There may be a dispute about whether a person can make a decision for themselves. It may therefore fall to the Court to consider the capacity assessments and opinions and make declarations about capacity. In some cases, a person may be thought to lack capacity to make a decision but actually they just need the right assistance, e.g. help to understand the relevant information or to communicate their decision. Only once a person is found to lack the capacity to make a decision can a decision be made on their behalf and in the person’s best interests.
Common disputes in the Court of Protection include:
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Whether a person has the mental capacity to make a certain decision for themselves Best interests disputes Disputes particularly relating to an individual’s health and welfare Objections to the registration of a Lasting Power of Attorney Disputes about the appointment of a deputy Challenges to statutory will or gift applications
We can assist you with preparing and lodging an application to the Court of Protection, even where a dispute is involved. We can represent you throughout the duration of the case or for specific stages. If you have not initiated the Court of Protection proceedings but you have become a party to them, or you wish to dispute them and would like to be represented then we are also able to help.
Supporting Clients. Protecting Assets. Changing Lives.
Professional Litigation Friend Services When someone lacks mental capacity to conduct their own court proceedings, with or without a solicitor, they will require the court appointment of a litigation friend to conduct it on their behalf. A litigation friend is required to act in that person’s best interests and provide instructions on their behalf. A litigation friend can be: a family member or friend; a professional advocate; a Solicitor or a Court of Protection deputy. As a last resort, the Court will appoint the Official Solicitor. The litigation friend plays a crucial role in ensuring that the voice of the individual who lacks capacity is heard before the Court. It is therefore vital for the individual that the right person is appointed. Complex Court cases can be very demanding and overwhelming for those who do not have experience in that field of work. EMG are highly capable litigation friends and have acted as such in high value, complex and even international matters.
‘Jemma is not just a solicitor, to our family, she is the most professional and thoughtful adviser we could have chosen to assist ourselves in dealing with our Court of Protection affairs, we count on her as a good friend, she has guided us through some really upsetting times, in the most professional and caring manner, she has always been there to advise ourselves what is right legally, and sometimes we have had to call her or speak to her “out of office times” and this has never been a problem, she has always been genuine and caring, and nothing is too much for Jemma and her team at EMG.’
What makes EMG Solicitors different?
Our clients recieve:
As well as the duties already listed, our deputies and their specialist teams work hard to get to know our clients. Everyone is treated as an individual and with respect. We like to think of ourselves as the scaffolding around our clients to support them and help them to live the most enhanced life they can.
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We understand the type and size of expenses that clients with very complex needs require and might incur. Some of our clients have suffered a birth injury and have very complex physical needs and some of our clients have minimal physical needs but have challenging cognitive issues. We also have experience of dealing with addiction issues, very challenging behaviour and communication difficulties. All issues are handled sensitively by the team, who are fully trained and understand how to work with clients with such difficulties. Our culture is all about co-operation, professionalism and fairness. Our court of protection lawyers support the client’s financial requirements including overseeing an investment portfolio as well as paying for the client’s living, care and therapy costs. All our clients are treated with honesty and respect and we do what we say we will, within agreed timeframes. We offer empathy, understanding and a collaborative approach. Our team provide the support our clients need, whether that be help to manage their current affairs or plan for the future.
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A key contact who works closely with them and communicates in their preferred manner A legal team who undergo specialist training to work with vulnerable clients Support with daily financial management anything from managing any state benefits and entitlements through to managing complex financial affairs and investments Support packages and therapies tailored to their specific needs (our team will recommend/liaise with external case management and therapy professionals).
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Our culture is all about co-operation, professionalism and fairness We do what we say we will, within agreed timeframes, to earn our clients’ trust and respect We have developed other specialist legal services to support our clients. These departments all understand the impact that capacity can have on specific issues (property, litigation, estate planning and family law) We communicate simply, take time to explain issues, and meet clients in person annually (or when needed subject to OPG/SCCO restrictions), and if we are ever in doubt about capacity we will liaise with our network of experts and support our clients as best we can We work closely with family members but always meet clients by themselves where required We are involved in many external organisations such as Headway, CoPPA, PDF and Beamish Museum to maximise our knowledge and give back to vulnerable communities.
Supporting Clients. Protecting Assets. Changing Lives.
Our Professional Deputies Emma Gaudern
Jemma Morland
Managing Director
Director & Head of Court of Protection
Passionate about her work, Emma is a Court of Protection professional deputy and has specialised in Court of Protection work throughout her career. Emma is highlighted in the Legal 500 as a ‘leading individual’, being ‘first class on court of protection matters’ and for her “personable approach, her experience and for the confidence she commands from all quarters.”
Jemma Morland is Head of Court of Protection at EMG Solicitors. She acts as both a professional trustee and deputy for her clients and is well respected and nationally recognised for her specialism.
Emma is a member of the Society of Trust and Estate Practitioners (STEP) and a regular speaker at conferences, including those for the Association of Personal Injury Lawyers (APIL), Headway, NABIF and the Court of Protection Practitioners Association (CoPPA). Emma also regularly acts as a Court of Protection expert witness within personal injury litigation and as litigation friend to clients going through a Court process such as divorce or a personal injury claim, who do not have the capacity to give instructions. 0191 731 4612 emma.gaudern@emgsolicitors.com
Jemma is a leading individual in this specialist field and was co-founder of the firm. Jemma was one of the youngest Court appointed professional deputies in the UK at the time of her appointment. She also helped found and is treasurer for CoPPA North East (the Court of Protection Practitioners association). Jemma is also the treasurer for Headway Wearside, a group which supports those living with brain injury and on the Professional Deputies Forum (PDF) committee. Recognised in the Legal 500 as a recommended private client lawyer and for her “niche expertise” in the financial aspects of the 2014 Care Act, Jemma has spoken at a number of conferences in relation to the Care Act, the Mental Capacity Act 2005, the role of a Deputy and Court of Protection matters generally. Jemma manages complex & challenging cases both as a Deputy and as a representative for interested parties. 0191 731 4615 jemma.morland@emgsolicitors.com
Supporting Clients. Protecting Assets. Changing Lives.
‘I first came across Emma Gaudern when I was trying to develop a brain injury support group in the area of Darlington. It was immediately apparent that she had legal expertise in the field of catastrophic injury, court of protection and deputyships. Something else stood out though, it was the determination to make things happen, to influence change and be integral to the changes taking place - all of this done with a positive, can do, philanthropic attitude.’ Mr A White
Durham Office EMG Solicitors Abbey House Abbeywoods Business Park Durham DH1 5TH
Gosforth Office EMG Solicitors Croft House High Street, Gosforth Newcastle upon Tyne NE3 1NQ
T. 0191 500 6989 F. 0191 500 6990 E. enquiry@emgsolicitors.com www.emgsolicitors.com
Penrith Office EMG Solicitors Birbeck House Duke Street Penrith CA11 7NA