What is the Court of Protection?
The Court of Protection makes decisions for people (‘P’) who lack the mental capacity to make decisions on their own. This can happen for lots of reasons, for example, they may have a serious brain injury, an illness like dementia or severe learning disabilities.
What is the purpose of the Court of Protection?
The purpose of the Court of Protection is to protect vulnerable people and to make sure their affairs are properly looked after as to avoid another person/persons taking advantage of them.
What matters does the Court have jurisdiction over?
The Court of Protection broadly considers matters relating to Property and Affairs and Health and Welfare.
What can the Court of Protection do?
The Court’s powers are governed by the Mental Capacity Act but the Court can also exercise its own discretion.
The Court’s general powers include decide whether a person has capacity to make a particular decision, appointing a Deputy (application for Deputyship), who can make decisions on financial issues like paying care home fees or, welfare matters such as switching off a life support machine, deciding whether an action is in a person’s best interests, ruling whether a person is being deprived of their liberty under the Mental Capacity Act an confirming or revoking the validity of a Lasting or Enduring Power of Attorney.
Application for Deputyship
The most common application to the Court of Protection is an application for Deputyship. A Deputy is a person appointed by the Court of Protection to manage another’s affairs when they no longer have sufficient capacity to make decisions independently.
When is it required?
If you have made a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA) and you lose mental capacity, then your Attorney/s can simply step in and act on your behalf. An Attorney is someone YOU choose to appoint.
If you have not made an LPA or EPA and you lose capacity, then a Deputy can be appointed by the Court of Protection to act on your behalf. A Deputy is someone the COURT decides upon.
What types of Deputy are there?
There are two types of Deputyship, Property and Financial Affairs and Personal Welfare.
Personal welfare
Issues may include (but are not limited to) deciding where P will live, deciding what contact, if any, P is to have with any specified persons, prohibiting a named person from having contact with P, giving or refusing consent to medical treatment for P.
Property and Affairs
Issues include (but are not limited to) control and management of P’s property, sale, exchange, charging, gift or other disposition of P’s property, acquiring property in P’s name or on P’s behalf, carrying on, on P’s behalf, any profession, trade or business and conducting legal proceedings in P’s name or on P’s behalf.
Who Could Be My Deputy?
Your spouse, a family member, a friend, or a professional person such as a solicitor.
Your Deputy must be over 18, capable, responsible and trustworthy. The Court decides who is suitable.
What are the responsibilities of a Deputy?
A Deputy’s responsibilities include acting in the best interests of P, acting with honesty, keeping accounts of the dealings and transactions they have undertaken for P and filing an annual report to the Office of the Public Guardian.
How long is the Application process?
It can take 12 months or so for a Deputyship Order to be granted by the Court of Protection.
During the application process, the proposed Deputies are unable to manage P’s finances or make important decisions with regard welfare.
How much does the application cost?
An application for a Financial Affairs Deputyship Order will commonly cost between £900.00 and £3000.00 plus vat (if uncontested), plus the Court application fee of £371.00 plus disbursements.
An application for a Personal Welfare Deputyship Order will generally incur higher costs due to the complexities of the application.
Who is responsible for the costs of the application?
All application costs, including the Security Bond, are payable from the estate of the person who lacks capacity, not by the Deputy’s personal funds.
How can Edmondson Hall Solicitors help?
Our guide shows it can be a stressful, emotional process, particularly where you are applying for Deputyship of a loved one who no longer has mental capacity.
From instructing the right medical professional to assess your loved one, to completing the relevant forms and meeting the Court of Protection’s strict timescales, our friendly team of experts can help you every step of the way.
If you do not wish to face this task alone or have begun proceedings and are struggling to complete it, then do not hesitate to contact us.
If you would like further information on a Court of Protection Deputyship Order or Lasting Powers of Attorney, then please contact Edmondson Hall’s Private Client lawyers for help and sound advice. To get in touch with us call 01638 560556 or email us:
mike.lambert@edmondsonhall.com
