Making an application to the Court of Protection can be a lengthy and time consuming process. Our specialist team of Solicitors can help you through the application process from beginning to end.
SOLVING PERSONAL LEGAL MATTERS
The Court of Protection is a specialist Court which deals with issues regarding people who lack the mental capacity to make decisions for themselves.
If a person can no longer make decisions for themselves regarding their property and financial affairs due to the loss of mental capacity, then an application can be made to the Court of Protection to appoint a Deputy who, following an Order from the Court, will be able to make decisions on that person's behalf. By the time a person has lost mental capacity, it is unfortunately too late to put in place a Lasting Power of Attorney. Without either a Lasting Power of Attorney or Deputy order it is impossible for someone to manage another individual's financial affairs.
The Court of Protection Deputy has the authority to manage an individual's financial affairs on an ongoing basis in accordance with the permission granted in the court order.
The Deputy is usually a family member or close friend. Sometimes, it is appropriate to have a professional Deputy in place, such as a solicitor or an accountant. Forbes Solicitors are happy to act as professional Deputies and currently act in this role for numerous clients.
Any Court of Protection Deputy must be over the age of eighteen.
Court of Protection Deputies are legally responsible for dealing with the person's property and financial affairs and it is important that they keep accurate financial records as they will need to report to the Court every year as to how that person's financial affairs have been managed. For any complex financial situations, it is important that the Deputy seeks the relevant professional advice.
Some of the tasks that a Deputy might undertake are:
A Deputy is unable to make ongoing and general health and welfare decisions on behalf of an individual. The Court of Protection will not grant a general health and Welfare Deputy order, similar to a Health and Welfare Lasting Power of Attorney. For example, a Deputy does not have the automatic authority to consent or refuse life sustaining medical treatment on behalf of an individual or decide where someone should live. However a Deputy can apply to the Court of Protection to be able to make a specific health and welfare decision at a specific time. For example, if a Deputy needed to make a decision about where an individual should live, they can apply to the Court of Protection to obtain authority to make that decision. Once the decision is made, usually the authority would end.
Once it has been established that an individual lacks capacity to manage their own affairs, the first step is to obtain medical evidence to confirm this. The relevant forms are usually completed by the person's GP or a mental health professional who sometimes charge a fee.
The proposed Deputy will need to have details of the individual's property, bank accounts, investments etc. as well as information about their family and who visits them regularly. Details of the individual's debts and outgoings will also be required. The Deputy will also be required to complete a form about their own personal circumstances and declare anything which may prevent them from acting, such as bankruptcy or criminal convictions.
Once all the paperwork is complete, it is sent to the Court of Protection. It is also a requirement of the Court of Protection that certain family members are notified of the proceedings and given an opportunity to object if they wish. Any objections must be based on the list of potential legal objections prescribed by the Court.
Once the Court has considered and processed the application forms the Deputy will be required to set up a security bond - an insurance policy to cover the value of the individual's assets in order to protect their assets from abuse. The higher the value of the individual's assets, the more expensive the bond, which is payable out of the individual's assets and needs to be renewed each year.
Once the bond is in place the Court of Protection will send out a formal Court Order legally appointing the Deputy setting out their powers and duties. The Deputy must act in accordance with the Court Order and always act in the person's best interests. If the Deputy wishes to do anything that it is not set out within the Court Order, they must make a further application to the Court to obtain authority.
Making an application to the Court of Protection can be a lengthy and time consuming process. Our specialist team of Solicitors can help you through the application process from beginning to end, and if required act as Court of Protection Deputies.
The fees charged by the Court of Protection vary depending on the nature of the application.
No fee is incurred for applications and hearings relating to objections to the registration of enduring powers of attorney (EPA) and lasting powers of attorney (LPA). The person making the application is responsible for paying the fees which are payable upfront when the application is made.
If your application relates to a person's property and affairs, then you can recover the fee from the person the application is about. If your application relates to a personal welfare matter, then you must pay the fee yourself. However, if you are already the deputy or attorney for the person, you can recover any expenses incurred from carrying out your duties, which includes court fees, even if your application relates to a personal welfare matter.
The Court of Protection is a specialist Court which deals with issues regarding people who lack the mental capacity to make decisions for themselves. The Court is not just in one place - a Court of Protection hearing could be in the Royal Courts of Justice in London, or in a county court outside London. There are lots of different judges who are part of the Court of Protection.
The Court of Protection is responsible for:
The Court of Protection can NOT make a decision on behalf of someone who has capacity to make that decision.
A Deputy is someone appointed by the Court of Protection to manage an individual's finance and property.
Anyone can be a Deputy, however it is usually someone that is very close to the individual whose finances they are managing and more often than not it is their next of kin. However, in certain cases, an individual may not have any immediate next of kin or they may not be suitable, in which case a friend or professional, such as a solicitor, can be appointed as Deputy.
A Deputy is required to keep an accurate and up to date record or all financial transactions they conduct on behalf of the individual including keeping receipts. The Deputy is required to complete and submit a yearly report to the Office of the Public Guardian setting out what money has come in and gone out of the individual's accounts and what financial decisions they have had to make over the year. The Court of Protection's role is to supervise a Deputy and they will make visits to a Deputy on an ad-hoc basis to ensure they are acting in the best interests of the individual.