Deputy – Court of Protection
Court of Protection
The Court of Protection is a specialist Court established to deal with matters regarding people who lack the mental capacity to make decisions for themselves.
If a person can no longer manage their financial affairs and they do not have the capacity to make a Property and Finance Lasting Power of Attorney, then an application can be made to the Court of Protection to appoint a ‘deputy’ to look after their affairs. Without either a Lasting Power of Attorney or Deputy order it is impossible for someone to manage another individual’s financial affairs.
Who can Act as a Deputy?
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. This is normally because there is no one able or willing to take up the role. Everys 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 18, must not be bankrupt, or have been convicted of certain criminal offences.
What is the role of a Deputy?
Once the appointment has been made, the deputy can make decisions on that person’s behalf in accordance with the permissions given in the Court Order. This is similar to an attorney but a deputy has to report to the Court of Protection.
There are two pathways in the process of appointing a deputy:
- Finance and Property Deputy
- Welfare Deputy pathway
Court of Protection Deputies are legally responsible for dealing with the person’s property and financial affairs. The deputy will need to keep accurate records in order to complete an annual report. For any complex financial situation, it is important that the Deputy seeks the relevant professional advice.
Some of the tasks that a Deputy might undertake are:
- Managing bank accounts
- Paying bills, including a mortgage and day-to-day expenses
- Paying care fees
- Claiming benefits
- Filing tax returns
- Arranging/managing investments and shares
- Ensuring that the person has enough money for their day-to-day needs.
- Selling or renting property
What is the process?
Step 1 – Medical Evidence
The first step is to obtain a medical report. The relevant forms are usually completed by the person’s GP, a mental health professional, or a social worker. There is usually a charge for doing this which can vary as it is set by the individual professional or practice. It is the Court that determines capacity, not the report.
Step 2 – Prepare the application paperwork.
This includes submitting 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 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.
Step 3 – Submit the paperwork to the Court of Protection.
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. Most applications are a paperwork exercise but if any objections are raised a hearing will be held before a Judge.
Step 4 – Set up the Security Bond.
Once the Court has appointed a Deputy, they will be required to set up a security bond. This is 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. This is determined by the Court. It may be an annual policy or a one-off policy.
Step 5 – Deputy Order is made
Once the bond is in place, the Court of Protection will send out the formal Court Order legally appointing the Deputy and 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 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 process involving a lot of paperwork and I often find that when a family requires a deputy to be appointed, it is often at a time of a family crisis. Normally, something needs to be done on behalf of a family member and it cannot be done without a deputy leaving a family member in a vulnerable position. Our solicitors have expertise in this area; they can take away this added pressure and guide you through the process.
The Court of Protection is reluctant to make a general appointment for a person’s health and welfare. The reasoning for this is that it is a huge power for one person, or persons, to have over another. They prefer to deal with a ‘particular’ welfare issue that may require the Court’s input.
There are circumstances where a Welfare Deputy will be appointed, such as where the person’s circumstances mean that there are a number of welfare decisions that need to be made, for example, if they are undergoing treatment. I would advise that you seek expert advice to discuss your individual circumstances in connection to welfare matters.
What does it cost?
- Our fees – we offer clients an estimate of costs based on their circumstances.
- Court fees – this can depend on how complicated the matter is; most matters are dealt with via a paper exercise and in these circumstances, the court fee will be £371.
- Insurance fee – set by the Court.
- Medical fee – set by the professional preparing the report.
- Ongoing supervision fees – set by the OPG.
- Annual report fee £100.
If you would like to make an appointment to discuss making an application to the Court of Protection, or if you have any questions, please contact Jane Flaherty on 01404 541904.