No Lasting Power of Attorney in place - Applying to the Court of Protection

Together we are Forbes


13 May, 2021

Jane Burbidge

Yesterday's blog as for Dying Matters Awareness Week (10-16 May) was about Lasting Powers of Attorney. Dying Matters Awareness Week encourages people to talk about death, dying, bereavement and to plan for the future. Sometimes, unfortunately, advance planning is not done. If a person loses mental capacity and does not have a Lasting Power of Attorney in place, those who wish to assist or manage the person's finances must apply to the Court of Protection to be appointed as their Deputy.

Applications to the Court of Protection usually concern property and financial affairs. The Court does have the power to make orders about Health and Welfare decisions, but only where the patient is unable to make those decisions for themselves. The Court are reluctant to grant orders relating to Health and Welfare decisions except in very limited circumstances.

If a person needs a financial Deputy to manage their affairs, their family or other appropriate person can make an application to the Court.

What is the process for applying to the Court of Protection?

The proposed Deputy must make an application to the Court of Protection. Many applications will not require the parties to attend a court hearing, although in some cases this is necessary. The person about whom the application relates, as well as other family members and interested parties, must be notified of the proceedings.

What is the cost for applying to the Court of Protection?

In many cases, a solicitor's fees for applying to the Court of Protection on a client's behalf are fixed by the court. There are additional fees payable, for example, in obtaining a medical assessment and the court fee. Some people might qualify for a reduction or exemption from the court fees depending on their circumstances. There are also ongoing fees paid annually.

The Deputy also has to take out a Deputy Surety Bond. This is a mandatory requirement and the purpose is to safeguard the patient's assets from financial losses suffered by a failure of the Deputy to perform their duties. The cost of the bond is dependent upon the value of the assets being protected.

Are there any ongoing duties?

Yes. Once appointed as a Property and Finances Deputy, there is an ongoing duty to act in the patient's best interests. The Deputy is subject to ongoing supervision by the Office of the Public Guardian and the Court of Protection, and must submit a lengthy financial report every year. Deputies should keep full financial records and receipt to make completion of the financial report possible.

How can Forbes help?

If you need to apply to the Court of Protection, our team of specialists can deal with the application on your behalf, making the process as seamless as possible. Once appointed, we can also assist with the completion of the annual financial report. If there is no appropriate family member willing or able to take on the role of Deputy, Forbes are able to act as professional Deputy.

For more information about applying to the Court of Protection, or our Court of Protection services generally, please contact Jane Burbidge in our Wills, Probate, Tax and Trusts department or alternatively call 01772 220 022 or send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Wills, Probate, Tax & Trusts department here

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