Court of Protection - Frequently Asked Questions
You can make an application to be appointed as someone’s Deputy if they lack mental capacity and are 16 years old or over. If they are under 16 you will need legal advice. People may lack capacity because of many different reasons. As a Deputy you will be authorised by the Court of Protection to make decisions on their behalf. You can be appointed to manage someone’s property and financial affairs or personal welfare, or both.
What is the Court of Protection?
It is a specialist Court which looks after individuals who lack capacity to make decisions for themselves. The Court can give these powers to someone else if there is a need for decisions to be made on an ongoing basis. If the Court delegates these powers to someone else they will be known as a Deputy.
When would the Court need to appoint a Deputy?
If someone has not made a Lasting Power of Attorney and they lose capacity, then an application needs to be made to the Court of Protection asking the Court to appoint a Deputy. The Court would appoint a Deputy to take care of someone’s finances or health and welfare when a person is no longer able to make those decisions.
How would someone lose 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.
Who can be appointed as a Deputy?
Anyone over 18 can be appointed as a Deputy although it is usually a family member, close friend or a solicitor. The Court will look first of all at whether there is anyone who has a close connection to the person lacking capacity and would be able to effectively carry out the role. If there is no one suitable then it may be more appropriate for a solicitor to be appointed. Solicitors specialising in Court of Protection matters will have the right expertise to be able to make decisions in complicated matters or where there are a lot of finances to manage.
Most Deputies are property and affairs Deputies. If you want to become a property and affairs Deputy you need to have the skills to make financial decisions for someone else.
However the Court may appoint a personal welfare Deputy, if the person is susceptible to abuse or there has been a history of disputes within the family in relation to care.
The Court can appoint 2 or more Deputies for the same person.
What if there is more than one Deputy appointed?
The court 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.
When should a property and affairs Deputy be appointed?
If a person lacks mental capacity to make decisions about their property and financial affairs, and they have not made either a valid Enduring Power of Attorney or a valid Lasting Power of Attorney, an application will usually be necessary to appoint a Deputy so that they can:
- deal with any income
- pay any bills and debts
- deal with any cash assets e.g. bank and building society accounts
- manage or sell property
- deal with any capital assets and make any investment decisions.
When should a personal welfare Deputy be appointed?
The court only tends to make deputyship orders in the most difficult cases, such as where:
- important and necessary decisions cannot be carried out without the courts authority
- or there is no other way of settling the matter in the best interests of the person concerned to make welfare decisions.
This could be for instance where a person suffers from a progressive illness or profound learning difficulties and various medical decisions are required to be made on their behalf over a long period of time i.e. if they are a young person. It could also be where there have been family disputes in the past which could impact on the vulnerable person’s future care or where they are considered to be at risk of serious harm if left in the care of family members.
When would the Court of Protection make personal welfare decisions?
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 do you apply to be a Deputy?
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.
How long does it usually take for the Court of Protection 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.
What happens if there is an emergency and a Deputy needs to be appointed quicker?
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 kind of costs are involved in a Deputyship?
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 duties do Deputies 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.
Do I need to keep a record of what I do as a Deputy?
Yes each year you have to report to the Court showing all the major decisions you have made, and providing detailed accounts of all the money that has been received and what has been spent. It is therefore crucial to keep a proper record throughout the year.
What must a Deputy not do?
There are 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 if the person lacking 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.