Court of protection solicitors
The Court of Protection looks after people without mental capacity. An Application is usually made to the Court of Protection to appoint a family member, friend or solicitor to act as Deputy to make decisions for those who lack capacity. Minton Morrill’s Court of Protection team provide these specialist services and are vastly experienced in all aspects of Deputyship particularly following successful medical negligence compensation claims against the NHS involving young children.
If you would like to read more information about medical negligence claims and how these are investigated by our expert team click here.
What is the Court of Protection?
The Court of Protection is a specialist Court that looks after individuals who lack capacity to make decisions for themselves. It can give these supervisory powers to someone else if there is a need for decisions to be made on an ongoing basis. Those given these responsibilities by the Court of Protection are called Deputies.
What is a Deputyship and Can the Court Appoint a Deputy?
If someone has not made a Power of Attorney (a document setting out your wishes in the event that you lose mental capacity) and they lose capacity, then an application will usually be made to the Court of Protection requesting that a Deputy is appointed. For children, particularly those affected by negligent medical treatment resulting in brain injuries, Court of Protection involvement may be required when they are much younger. The Court will then appoint a Deputy to take care of someone’s finances or health and welfare.
To apply for Deputyship, there are a series of forms which must to be completed and sent off to the Court of Protection. These must be supported by a medical practitioner’s capacity assessment showing that the person cannot make decisions for themselves.
There are quite a lot of formal procedures to follow, for example, who must or who may be made aware of the application and sign the forms, and there are strict timeframes to adhere to. It is vital the forms are correctly filled in, otherwise they will be sent back. If you would like assistance with the application process a solicitor will be able to help.
What Duties Does a Deputy Have?
Deputies must make sure they correctly fulfil their duties. Deputies should bear in mind the guidance on the Mental Capacity Act 2005 Codes of Practice. In particular they must ensure that they:
- make decisions which are in the person’s best interests
- consider what the person has done in the past when they had capacity
- apply a high standard of care which might mean including other people, such as getting advice from relatives or doctors
- do everything they can to help the person understand the decision
- record major decisions in the annual report
- make sure that their own property and money is separate from the person’s
- keep records of the finances they manage on behalf of the person.
There are also certain things a Deputy must never do, including:
- restraining the person unless it’s to stop them coming to harm
- stopping life-sustaining medical treatment
- taking advantage of the person’s situation by, for example, profiting from a decision the Deputy made on behalf of the person
- making a will for the person, or changing their existing will
- making gifts (if don’t fall within limited exceptions) unless the court order says you can
- holding any money or property in your own name on the person’s behalf
What Powers Does the Court of Protection Have and What Orders Can it Make?
The Court of Protection decides whether someone has the mental capacity to make a particular decision for themselves. They can appoint deputies to make ongoing decisions for people who lack mental capacity. They can also give people permission to make one-off decisions on behalf of someone else who lacks mental capacity. The Court of Protection is able to handle urgent or emergency applications where a decision must be made on behalf of someone else without delay.
As well as dealing with Deputyships, the Court makes decisions about Lasting Powers of Attorney or Enduring Powers of Attorney and will consider any objections to the registration of these.
The Court of Protection also has the power to consider applications to make statutory Wills or gifts and are responsible for making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
When will the Court of Protection appoint a Deputy?
The Court of Protection will usually appoint a Deputy when a person is deemed to lack mental or legal capacity and has:
- More than £16,000 in cash after payment of debts; or
- Property to be sold or purchased; or
- A level of income that the Court considers necessitates the appointment of a Deputy.
How Long Does it Take for the Court to Appoint a Deputy?
It really depends on a range of factors, such as:
- whether permission is required
- how long it takes to notify all interested parties that you have made an application
- whether the court requires more information before making a decision
- whether anyone opposes the application.
In most straightforward cases it tends to take around 3 to 4 months.
Can You Get an Emergency Court of Protection?
An urgent application can be made to the Court of Protection if there are concerns that the person might lose a lot of money or suffer physical or mental harm if the application is not dealt with expeditiously. This emergency application is different to the standard application and a solicitor would be able to provide advice in relation to the same.
What Can Cause a Lack of Capacity?
There are various ways someone can lose capacity. This could be through suffering Alzheimer’s, dementia, a stroke, brain injuries, severe post traumatic stress disorders or severe learning disabilities.
It is the Court who ultimately decides if someone lacks capacity. Although what frequently tends to happen is a solicitor is instructed to deal with the application. The solicitor will then seek medical advice from a doctor which they then present to the Court. If the medical evidence shows a person lacks capacity then this will be persuasive to the Court.
It is however important to note that just because a person lacks capacity to make certain decisions i.e. in relation to their finances, they may still have capacity to make personal decisions like where to live or whether to make a will. Capacity tests are task specific and you must not assume it’s the same at all times. You must therefore consider someone’s level of capacity every time you make a decision for them.
How is Mental Capacity Assessed?
The Court of Protection ultimately decides if someone has lost their mental capacity. Usually, our Court of Protection Solicitors are instructed to make an Application to the Court of Protection and will obtain an independent opinion from a specialist doctor which will be presented to the Court. If the evidence of this doctor is that capacity is lost the Court of Protection are likely to agree with this.
Our experts have excellent relationships with independent medical experts and are able to arrange an appointment for capacity to be assessed quickly for an Application to the Court of Protection.
Some people may lack the mental capacity to make certain decisions but not others; for example, they may not be able to make financial decisions but they may still be able to take personal decisions such as deciding where to live or to make a Will. This is where professional experience with our team of specialist lawyers is crucial because we understand how sensitive this can be for the person affected and recognise that a person’s mental capacity needs to be constantly assessed.
How Can our Court of Protection Solicitors Help You?
If you need to apply for Court of Protection Deputyship it is often because a child, friend or loved one has suffered deterioration in their health. Our team of experienced Court of Protection solicitors understand that this is a particularly sensitive time and will take the burden of making the Application to the Court of Protection into our hands so you can concentrate on your loved one.
Aside from submitting successful Court of Protection Deputyship Applications, we act as Professional Deputies for numerous people. We realise it can be a demanding, stressful and time consuming role especially coupled with busy lives with family and work. We are a trusted and capable team.
We continue to act for many long-term clients and have built up excellent and informed relationships as is evident by the positive feedback we have received over the years. We have set out below just a few examples of how our own clients have described the service we provide:
- “Efficient, friendly and honest. I didn’t feel as if I was being given false hopes.”
- “We found the service professional and supportive in what was a difficult and emotional experience we went through. Julia explained everything in a clear and understanding way.”
- “Julia [Morrill] is very professional, makes you feel at ease, explains things without using legal jargon and tells you how it is. What a lovely lady.”
What Happens if the Person Who Lacks Capacity Does Not Have a Will?
A Deputy cannot make a Will on behalf of a person lacking capacity. However a Deputy, Attorney or someone likely to inherit from the person when they die, can apply to the Court of Protection to ask for permission to make a statutory will. Application forms have to be completed and sent to the Court with a statement setting out the reasons why you think the will should be drawn up in terms you have suggested. The Court will then decide whether this should be allowed. The process can be complicated and expensive but a solicitor could assist with this.
Examples of our Court of Protection Work
Quite often new clients understandably have very little knowledge about the Court of Protection and how it operates. We have set out below some example of cases where our experts have helped:
- Thomas (name changed to protect confidentiality)
The head of our Court of Protection team, Julia Morrill, was instructed as a Court of Protection Deputy on behalf of Thomas, a child under the care of a Local Authority. Thomas’ mother had previously been in the care of the same Local Authority. She was pursuing a separate medical negligence claim with Minton Morrill’s team of expert medical negligence solicitors.
A very experienced Deputy was required because Thomas had been born into a very troubled family and there were numerous financial challenges to consider including possible criminal activities. Thomas was involved in further Local Authority care proceedings and Julia had to tread a very fine line between Thomas’ foster parents and his natural mother while the proceedings and the medical negligence claim proceeded. With Julia’s experience she was able to secure a full and proper support package for Thomas.
- Sally (name changed to protect confidentiality)
Julia Morrill was appointed as a Professional Deputy by the Court of Protection for Sally, a young child who suffered a significant brain injury resulting in hearing loss as a result of a medical negligence. Sally’s family was very unorganised and erratic and sought Julia’s professional assistance with this to assist with a move to another part of the country. A new support network of carers and doctors for Sally was required. Julia Morrill and her team of Court of Protection specialists worked hard to set this support up and utilised the financial assistance that the successful medical negligence compensation enabled Sally to access.
With Julia’s help, Sally transferred from a mainstream to special needs school and was able to access additional treatment and support therapy. A new house was also purchased with specialist adaptions for Sally’s medical needs as well as a 24/7 care plan put in place.
As well as assisting with the research and establishment of this new life for Sally, Julia’s ongoing role is to make sure the financial compensation Sally received through the successful medical negligence claim is spent properly and in her best interests. This takes experience and judgement to get value for money and to make sure that the compensation Sally receives is spent appropriately so that it will last for the duration of her life.
- John (name changed to protect confidentiality)
Sahida Patel of Minton Morrill’s Court of Protection team has recently been appointed as John’s Professional Deputy. John received damages for personal injury arising out of a fall in hospital and he now resides in a nursing home.
John’s physical condition is complex and he has a range of cognitive difficulties including memory, attention, drive, motivation and positivity. The Deputy currently has in place neuropsychology to try and reduce aggression levels and physiotherapy to maintain current health. The Professional Deputy is also considering additional therapies such as the opportunity for speech therapy to prevent any further regression of speech.
The action plan is to work in partnership with other professionals to develop a support plan for John as well as developing levels of independence. Sahida has already formed good relationships with all involved, including John’s parents and the case manager. Sahida will continue to manage John’s damages and decide as Professional Deputy what further means can be put in place to ensure that John receives the best quality of life.
Who can be appointed as a Deputy?
Anyone over 18 can be appointed as a Deputy but it is usually a family member, close friend or a solicitor. The Court of Protection will look at whether there is anyone who has a close connection to the person lacking capacity and would be able to carry out the role of a Deputy. If there is no one suitable then it may be appropriate for a solicitor to be appointed as a Professional Deputy. Julia Morrill and her team specialise in Court of Protection matters and have the right expertise and experience to take decisions in the best interests of their clients on often complicated issues. They regularly act as Court of Protection Solicitors when multi-million pound medical negligence claims are settled by Minton Morrill’s expert Medical Negligence Solicitors and are responsible for managing compensation and using these funds to support their clients.
The Court can appoint two or more Deputies for the same person and will tell you how to make decisions if you’re not the only Deputy. It will be either jointly or jointly and severally. If it is jointly this means that all the Deputies have to agree on the decision and make them together. Whereas if it is jointly and severally this means that Deputies can make decisions on their own or with other Deputies. The second option provides greater flexibility.
Can Minton Morrill Solicitors Act as a Professional Deputy?
Rather than acting as Lay Deputies, many of our clients prefer to put their trust in Minton Morrill to act as Professional Deputies. Being a Deputy is a complex and challenging role to fulfil.
We frequently find that family members do not want to risk their relationship with the person who requires protection changing or being damaged by becoming their Deputy, particularly if they have a close relationship. Understandably many people fear that the decisions they may have to make as a Deputy could be influenced by their love or protection for the person rather than a practical judgment. Others may feel concerned of potentially being put in a position where they feel uncomfortable rejecting requests for money or expenditure. The strain of other work and family commitments may also make the role of Deputy very challenging for a family member.
Minton Morrill’s Court of Protection professional Deputies take away these concerns. They build close relationships with clients and learn to understand their often complex needs and balance this with the ability to make difficult professional decisions based on their experience and judgment.
Our Court of Protection Solicitors predominantly act as Professional Deputies for children and adults as a result of multi-million pound settled compensation claims enabling the Claimant and their families to focus on moving forward with their lives and obtaining the care and treatment they need
As Professional Deputies we understand the law, codes of practice and what is required to act in accordance with court orders. We understand and manage many important issues such as benefits, taxes, security bonds, annual reports, investments of substantial funds and adaption’s of properties.
Our leading solicitors have excellent relationships with case managers and therapists so that we can tailor and manage care packages to ensure any clients’ needs are properly met. We also regularly liaise with financial advisors to ensure that compensation money and / or an individual’s funds are suitably invested and budgeted to ensure that person has the best quality of life available.
We have a national Court of Protection and Deputy presence across England and Wales based from our office in Leeds, Yorkshire. Our solicitors regularly travel to see clients across the country at their homes so that they feel more relaxed and do not have to arrange complex travel plans.
How Much Does a Deputyship Cost?
There are a range of costs which need to be considered:
- In preparing the capacity assessment, a medical practitioner will often charge for completing the report between £50 and £300.
- The Court charges an application fee of £365. If you are applying for a financial Deputyship and a health Deputyship, the application fee is payable twice.
- You will need to pay £485 if the Court decides that your case needs a hearing.
- After you have been appointed you must pay an annual supervision fee depending on what level of supervision your Deputyship needs. This is £320 for general supervision or £35 for minimal supervision. Minimal supervision is only applicable to financial affairs if the person has less than £21,000.
- You will also need to pay £100 assessment fee if you are a new Deputy.
- You must also pay a bond to protect the finances of the person you are a Deputy for before you can start acting as a property and affairs Deputy. This must be paid annually and the bond is set by the Court. The more assets a person has, the more expensive the bond is.
- A solicitor will charge for their time for making the application for the appointment of the Deputy. This completely depends on how complex the matter is. It tends to range between £850 and £1,500 plus VAT.
- If a solicitor is appointed as the Deputy there will also be their ongoing charges for all the work that is completed.
Please note however that the fees can often be paid out of the person’s money that requires the Deputyship.
What are the Different Types of Court of Protection Deputyships?
There are two common types of Court of Protection Deputies:
- Property and Financial Affairs Deputies
Within this category of Deputy, Julia Morrill and her Court of Protection team will manage a clients’ property and financial affairs. This is likely to include:
- Paying for care and other bills
- Managing income and budgeting appropriately
- Accessing state benefits
- Dealing with any cash assets e.g. bank and building society accounts
- Managing or selling property
- Dealing with any capital assets and making sensible investment decisions
Most Court of Protection Deputies are appointed to manage Property and Financial affairs. It can be complicated, time-consuming and confusing work for those not accustomed to it.
- Personal Welfare Deputy
Personal Welfare Deputies are appointed when someone suffers from, for example, a progressive illness or profound learning difficulties. Julia Morrill and her team, when appointed in this capacity, make deicisons on behalf of their clients about medical treatment. Personal Welfare Deputies may also be appointed by the Court of Protection when there have been prior family disputes that could impact on a vulnerable person’s future care or if they are considered at risk of serious harm if left in the care of the family.
Personal Welfare Deputies often make decisions on the following issues:
- The amount of contact the vulnerable person should have with a particular person or seeking a Court order against such contact if the circumstances dictate this
- Assessing where the vulnerable person should live
- Managing a person’s care needs, specifically, directing that a person responsible for the vulnerable person’s care allows someone else to take over that responsibility
- Providing/refusing consent to authorise/continue treatment by a person providing healthcare to the vulnerable person
- Whether the vulnerable person has the capacity to decide to marry or have sexual relations
- Making decisions involving complex and ethical dilemmas, such as medical treatment.
Can the Court of Protection make Personal Welfare Decisions on Someone's Behalf?
The court would look at all the evidence and may make welfare decisions in relation to the following matters:
- the amount of contact the vulnerable person should have with a particular person or making an order against such contact
- where the vulnerable person should live
- directing that a person responsible for the vulnerable person’s healthcare allows someone else to take over that responsibility
- providing/refusing consent to authorise/continue treatment by a person providing healthcare to the vulnerable person
- whether the vulnerable person has the capacity to decide to marry or have sexual relations
- whether life sustaining medical treatment should be withheld
- making decisions which involve a complex, ethical dilemma.
An example of when it would be useful to have a personal welfare Deputy appointed may be, for instance, where a vulnerable person has poor physical and mental health and it would assist those treating them to have a Deputy appointed. The Deputy would be able to discuss sensitive issues with the family but ultimately the Deputy will make the final decision.
How to contact us?
If you, or someone you know, needs help and advice about Court of Protection Deputyship and would like to speak with our experts please contact us through the contact form or by telephoning to speak to our solicitors on 0113 245 8549.
Our Experience of Court of Protection Claims
Susan is mum to Grace who is now 12 years old. Grace has severe cerebral palsy causing her learning difficulties and physical disabilities. Grace needs 24/7 care. After Grace was born her father left the family home leaving Susan to...
Paul is an adult who has cerebral palsy causing him severe disabilities. He lives with mum and dad. When Paul was in his early 20s great news came. He was to receive compensation for the medical negligence at his birth which caused his...
Following a successful clinical negligence claim, Julia Morrill was appointed as Professional Deputy on behalf of a child who suffered from significant brain injury and hearing loss. The child was a member of a dysfunctional family. Julia had to assist...
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