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Court of Protection
If you need to use the Court of Protection and require help from a specialist team of solicitors, we are here to help.
Our experts offer a wide range of services relating to the Court of Protection, all designed to make your life considerably less stressful and give you the legal rights you need to help a loved one when they need it most.
The Court of Protection Explained
The Court of Protection makes decisions and appoints Deputies to act on behalf of people who are unable to make decisions about their personal health, finance or welfare.
In addition to applying to become a Deputy, you can use the Court of Protection to:
- Make an emergency application to become someone’s deputy
- Object to, or cancel a lasting power of attorney
- Make, or change, a statutory will on behalf of someone else
- Apply to make a one-off decision on behalf of someone else
- Authorise a deprivation of liberty order
- Sell a jointly owned property if a co-owner has lost mental capacity
What Is a Deputy?
A Deputy is someone who can make decisions on behalf of someone else if they ‘lack mental capacity’ - if they can’t make decisions for themselves when they need to. This could be for a number of reasons, including a brain injury or illness; severe learning disabilities; or dementia. Deputies are often relatives or close friends of the person who needs help making decisions.
There are two types of deputy. You can apply to be one type of Deputy or both:
- Personal welfare
- Property and financial affairs
If there is a family dispute about who should become Deputy, or there is nobody willing or suitable to become Deputy, then an independent professional Deputy (often a solicitor) may be appointed.
Similarly, if there is a substantial care package to put in place or a sizeable estate to manage, including property issues, then a suitably experienced professional Deputy ought to be appointed.
Get in touch to find out how we can help you as a professional Deputy.
Responsibilities of Deputies
Deputies must be 18 or over. Appointed Deputies will be issued a court order from the Court of Protection stating what they can and can’t do. They are expected to follow the rules of the Mental Capacity Act Code of Practice and a range of general guidelines.
The Court of Protection states all Deputies must, when making a decision:
- Make sure it’s in the other person’s best interests
- Consider what the person for whom they are making decisions have done in the past
- Apply a high standard of care
- Do everything they can to help the other person understand the decision
They must not:
- Restrain the other person, unless it is to stop them coming to harm
- Stop life-sustaining medical treatment
- Make a will for the person, or change their existing will
- Take advantage of the person’s situation
- Make gifts unless the court order says they can
- Hold any money or property in their own name on the person’s behalf
Applications to the Court of Protection
Making an application to the Court of Protection can be a complicated process, with a number of different forms to fill in:
COP4 - deputy declaration form
This form enables the Court to assess your suitability to be appointed as Deputy. It asks you such things as: whether you have been convicted of a criminal offence, whether you have been made bankrupt and whether you may have any conflicts of interest if you were to act on behalf of the person.
Another section sets out the "undertakings" - effectively promises - that you agree to uphold if you become Deputy". For example, that you will act within the scope of your powers, you will act with due care, skill and diligence and you will keep account of dealings and transactions, amongst others.
COP3 - capacity assessment form
It can be difficult to determine whether someone lacks the capacity to manage their property and affairs. A loved one may exhibit certain traits that would lead you to assume they lacked capacity, but it is not always straightforward, particularly because capacity can fluctuate.
A practitioner must complete part B of the form. A practitioner must be someone who has examined and assessed the capacity of the person to whom the application relates. Appropriate practitioners are:
- Occupational therapists
- Social workers
- GP-approved mental health practitioners
COP1A - financial details form
This is supporting information for those applying to be property and financial affairs Deputies. In this form you must provide details of the person's bank accounts, savings, properties, pensions and Will, among other things.
COP1 - application form
This is the application form that sets out the applicant's details, the details of whom the application relates and what you're asking the court to decide e.g. whether the person lacks capacity and if you should be appointed as Deputy. It also asks you to name people who may disagree with the application and/or your appointment and people who are to be notified of the application - which is a form of check and balance.
Read this blog post to find out how to deal with any problems you may encounter when dealing with the Court of Protection.
If you are a personal injury and/or medical negligence firm and your client has lost the mental capacity to manage their property and affairs, they may require a Court of Protection Deputy to handle any interim payment(s) received in a claim in the first instance, and to ensure protected parties’ financial affairs are appropriately managed thereafter.
A Court of Protection Deputy’s costs are a recoverable claim in the litigation. These costs can significantly enhance the value of the claim and this is an area that should not be underestimated. We recommend using our experienced Court of Protection team to produce an expert witness report detailing:
- Whether a Deputy appointment is appropriate
- Deputyship costs
- Court of Protection fees
- Capacity issues under the Mental Capacity Act
- Whether a Statutory Will is required
- The cost of professional trustees, where relevant
At JMW, our solicitors work closely with personal injury and medical negligence lawyers to ensure a comprehensive service.
Because of the range of responsibilities of the Court of Protection and the potentially complicated process that needs to be undertaken to get the result you want, it is often easier to instruct a solicitor to help you with affairs relating to the Court of Protection.
Whether it be managing large damage awards or administering the affairs of someone with a large estate, our friendly and experienced team work closely with family, friends and carers to co-ordinate the issues. We are experts in:
- Deputyship applications
- Employment issues with carers
- Budgeting for your daily and future needs
- Welfare benefits claims
- Investment of funds
- Buying and adapting property
- Local authority issues
- Making a will
- Deputy and attorney disputes
For more information about changing statutory wills, click here.
If you are a personal injury and/or medical negligence firm and your client has lost the mental capacity to manage their affairs, we can help you produce an Expert Witness report.
What Can I Do If I Think Someone Is a Victim of Financial Abuse?
Financial abuse can encompass many aspects, including theft, fraud, exploitation, pressure in connection with wills, property or inheritance, or financial transactions. It can also include the misuse or misappropriation of property, possessions or benefits.
Surprisingly, most alleged abuse (not just financial) is perpetrated by a family member.
Family members may have been delegated legal authority to deal with the property and financial aspects of an elderly person’s estate. This may be either as an Attorney under a Lasting Power of Attorney, or alternatively having been appointed a Property and Affairs Deputy by the Court of Protection.
The Office of the Public Guardian is the supervisory body of Attorneys and Deputies, but it can be difficult to detect financial abuse. Frequently, they are not alerted until it is too late i.e. a care home is demanding payment and threatening to remove the individual from their home and a family member claims there is no money left.
If financial abuse has taken place, there are remedies available, for instance:
- Applying to the Court of Protection for the suspension, discharge or replacement of a Deputy
- Applying to the Court of Protection for an Order to be varied or for a Deputy's security bond to be called in or varied
- Apply to the Court of Protection for a revocation of a Power of Attorney
- Inform the police, where a crime may have been committed
If you suspect an Attorney or Deputy of financial abuse, please do not hesitate to contact our experts in complete confidence.
Can you object to your local council applying to be a Deputy for a relative?
If a family member is in a care home with dementia and they lack the capacity to manage their property and financial affairs, sometimes the local council will insist on submitting an application to the Court of Protection for themselves to be appointed as Deputy for property and financial affairs. This would give themselves the authority to access bank accounts of the person.
Naturally, family members are uncomfortable with this. JMW has had experience of councils applying first then informing family members second. Although, on occasions it has been done where those close relatives have not been apparent. It is possible, though, to contest the council's application to become Deputy.
As part of the appointment process, the applicant must notify close family members or people who regularly visit the individual suffering with dementia. Those notified are provided with a form (COP5), which gives them the opportunity of stating why a different deputy than the one proposed ought to be considered.
The form gives you the option of contesting the appointment. If you think it would be in the person's best interests that a relative (a carer or someone who visits regularly, for example) be appointed instead of the council, then you would explain and evidence why this is the case in the form.
How much does it cost to apply to the Court of Protection?
There is an application fee of £385, which is paid to the Court. However, if an individual’s gross annual income is below a certain threshold they may qualify to pay half the fee (a ‘remission’). If they receive certain means-tested benefits they may qualify to pay no fee (an ‘exemption’).
There is also a one-off £100 Deputy Assessment fee charged by the Court for assessing each case.
The Office of the Public Guardian will also charge an annual supervision fee, which is based on the cost of providing services to support you and the client. The amount is dependent on the level of supervision you have been allocated to and could be up to £320.
Fees are normally paid from the individual’s funds but can be paid by you and then refunded from the client’s funds later.
With over 35 years’ experience in the industry, our specialist solicitors will be able to help you deal with the Court of Protection, regardless of what you are trying to achieve.
Our expertise in this area is second to none and we are dedicated to helping reduce the amount of stress you are burdened with at what can be a very difficult time. Everyday we work alongside clients who have received high-value settlements following a serious injury or disability. As such we have extensive experience dealing with complex deputyship and statutory will applications, specialising in situations in which families are in dispute and relationships require thoughtful management
We strive to build strong relationships with our clients and the wider family unit, often providing additional legal support on a range of different issues.