The Court of Protection is a division of HM Courts & Tribunal Service that makes decisions on financial and welfare matters on behalf of people who can’t make decisions for themselves. It is a Court based in London with most cases heard by district judges and a senior judge. Someone loses their mental capacity in a variety of ways, the most common being where an individual is living with the advanced stages of dementia.
The Court is responsible for making a variety of decisions including the appointment of a ‘deputy’ or ‘deputies’, to make decisions for the person who lacks capacity. A Deputy in most cases tends to be a close relative but in some cases a professional deputy, such as a solicitor. The Court can also be asked to make emergency decisions for the incapacitated person or can also decide on whether someone is being deprived of their liberty.
Plan in advance to leave yourself more options
If you still have the mental capacity to appoint others to assist you with your property and financial affairs or health and welfare, you can do so under a Lasting Power of Attorney, or LPA. If it is felt that you no longer have the capacity to make an LPA and you do not already have in place an Enduring Power of Attorney or LPA, the Court of Protection is the only avenue available to allow someone a deputy to make a decision on your behalf. This is why we will always stress the importance of a client making a Lasting Power of Attorney.
What steps must be taken?
Before a deputy can act, an application has to be made to the Court with a number of prescribed forms. That evidence has to include a medical assessment prepared by a GP or consultant confirming that the individual lacks the mental capacity to make decisions for themselves. If a deputy is looking to assist someone with the management of their financial affairs, there will be a need to also supply details of that person’s assets. Once the application has been sent to the Court it usually takes 3 – 6 months for the Deputy or Deputies to be appointed. Given the complexity of an application, we would always recommend that a proposed deputy appoints a solicitor to deal with the application on your behalf.
Notice must be given to the person’s close relatives and any person with an interest in their welfare. The notified person has the right to raise any concerns about the proposed Deputy or Deputies acting. The Court can refuse an application if they feel the proposed deputy is unsuitable.
What are the costs involved?
A Court of Protection application can be a costly process. Dependent upon the incapable person’s income and capital, you may need to pay an initial application fee of £400. The GP/Consultant preparing the medical assessment will also charge between £50-£300. Before the Court make a final order, the Deputy may also have to take out a ‘bond’ to cover their actions and this can be payable annually. The premium for the bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the bond. The bond tends to be between £100-£300 per annum. In addition, if you instruct a solicitor to assist with the application, the Court sets fixed costs for an application, starting at £850 plus VAT. All costs involved would come from the incapacitated person’s own money.
What is expected of a Deputy?
The Deputy must always act in the incapable person’s best interests and comply with the Mental Capacity Act 2005 and related Code of Practice. The Deputy or Deputies must keep accurate records of their dealings and submit an annual report to the Office of the Public Guardian. There are three levels of supervision and the Court will set this.
A Deputy has to account to the Court at all times. Any major decision (such as selling someone’s property) needs the Court’s permission.
A Court of Protection application is always the last resort. If you have the capacity to appoint someone to act for you, you should take steps to make a Lasting Power of Attorney to protect you in the event that you lose capacity in future.
James Shingleton LLB (HONS)
Solicitor at Brearleys Solicitors
James is a full accredited member of SFE.
James prides himself on advising people in a clear and friendly manner.
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