There may come a time where one of your loved ones is unable to make an important decision. It could be in relation to selling a house, writing a will, or on financial matters. Whatever decision is to be made, if the individual is unable to do so, then they will need some help. This is where the Court of Protection comes in.
Topics to be answered in this article
What is the Court of Protection?
The Court of Protection is a legal court based in London that deals with issues regarding to people who can’t make decisions independently. The Court of Protection has the power to make decisions relating to finance, property, health or welfare. It was established as part of the Mental Capacity Act of 2005.
What does the Court of Protection do?
Its primary role is to decide whether someone has the mental capacity to make a particular decision for themselves where that is in question and where there are no alternative measures in place, for example, Lasting Powers of Attorney.
- Settling disagreements on mental capacity that can’t be settled elsewhere
- Appointing a Deputy
- Authorising applications to sell or purchase property.
- Granting permission for one-off decisions to be made
- Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- Considering applications to make statutory wills or gifts
- Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act
- Making decisions about the validity or the registration of a lasting power of attorney or an enduring power of attorney
- Making an urgent healthcare or personal care decision where there is no Deputy or Power of Attorney.
What is a Court of Protection Deputy?
Where the Court is satisfied that a person lacks mental capacity to make their own decisions it can authorise someone to make those decisions and sign documentation on the vulnerable person’s behalf by appointing them as a Deputy.
There are two types of Deputyship – one which covers Property and Financial Affairs and the other which covers Health and Welfare.
If the Deputy is handling financial matters they must keep the vulnerable person’s monies completely separately from their own and keep careful records of all decision making. A yearly report must be submitted to the Court confirming the actions taken in the preceding year.
What happens if there is a dispute?
If a loved one loses mental capacity the situation can become very stressful and emotional. Sometimes disputes can arise over what is in the person’s best interests.
An application to the Court of Protection could be necessary when there is a major disagreement regarding a serious decision about someone who lacks capacity. This could be about where they should live or who they should have contact with. It may be a family member or even the person themselves who have a strong view about what is in the person’s best interests.
If all other ways of making the decision, such as Best Interests meetings, have failed to reach a consensus then the only remaining option may be to apply to the Court of Protection.
If the application concerns a Deputyship or statutory will and is agreed by all parties then a full hearing is not necessary and an Order can be made based on written evidence only.
However, if the application is objected to then a full hearing will be needed. Hearings are held in private and only parties to the application, which will include family members, can attend. The cost of such a hearing is currently £494.
Court of protection FAQ
Q) Who can make decisions on behalf of someone who lacks mental capacity?
In the absence of a valid Lasting Power of Attorney an application to the Court of Protection for Deputyship may be needed but this will depend on what the decision is about.
If a single important decision is needed it is possible to apply to the Court of Protection for a one-off order. Alternatively, if a person has no or minimal savings then a benefits appointee may be sufficient. The Court will only make an Order if there is no less restrictive option available.
Q) Who can apply to the Court of Protection?
Anyone over 18 can be appointed as a Deputy but it can be an onerous role to take on so careful consideration should be given before making an application. The applicant should also be capable of dealing with the responsibilities of being a Deputy and financially solvent. The Court will usually appoint a family member or friend. However, in some circumstances a professional, for example, a solicitor or a local authority might be appointed instead. The Deputyship Order will set out the limits of the Deputy’s authority.
Q) How do I apply to become a COP Deputy?
Depending on the type of application the Court will need to be provided with detailed information so that they can understand the vulnerable person’s personal and/or financial position. It is very unusual for the Court to authorise complete authority over a person’s Health and Welfare decision making – more commonly it will provide authority in respect of single decisions.
A formal mental capacity assessment must be obtained from an appropriately qualified professional and submitted with the application. A fee will often be payable for this. The proposed Deputy will be required to make a declaration as to their suitability to act as such.
Q) How much does it cost to apply?
Separate applications are required for each type of application – the current fee is £371 although depending on the circumstances a reduction or full exemption from this fee may be applicable.
Q) Are there any additional costs to consider?
An Appointment Fee of £100 once the Order is made.
An annual Supervision Fee of either £320 or £35 depending on the level of supervision required which is set by the Court. An annual Security Bond which is set by the Court and based on the size of the estate. Legal fees if professional advice is sought.
Q) What can I do if I am concerned that a Court of Protection Deputy isn’t acting in the best interests of the vulnerable person?
You should report your concerns to the Office of the Public Guardian. Reported concerns will be investigated and if necessary the Court can order the removal of the Deputy.
Q) What should you do if a person that lacks mental capacity doesn’t have a Will?
In certain circumstances a document called a Statutory Will can be authorised by the Court of Protection where a person has either never made a Will or has an out of date Will. This type of application is complicated and expensive and professional advice should be sought.
Q) Can a Court of Protection Deputy manage assets or property held abroad?
The short answer is yes. However, the Order of the Court of Protection will not of itself be automatically accepted as sufficient proof as one country cannot force another country to recognise an order or decision they have made.
Dealing with overseas assets as a Deputy is difficult and expensive and may require the involvement of overseas lawyers so professional advice should be sought.
How can Goughs Help?
At Goughs, we have specialist expertise in dealing with Deputyship applications and are able to advise and assist as much as possible if you require guidance on how to make an application. If you are looking for advice, get in touch by calling Trish Watkins on 01249 450089 or complete an enquiry form by clicking here.