Court of Protection & Deputyship
The Court of Protection is the court which deals with matters relating to adults who lack the mental capability to make specific decisions in their lives.
What is the Court of Protection?
The Court of Protection was established under the terms of the Mental Capacity Act (2005) and is a specialist court which makes specific decisions, or appoints people known as Deputies, to make decisions on behalf of people who lack the capacity to do so for themselves.
Those caring for individuals with reduced mental capacity would need to apply to the court if they need permission to make decisions about the person’s health, welfare, financial affairs or property. The court must always act in the best interests of the individual being looked after.
What does the Court of Protection do?
The Court of Protection covers issues related to the welfare and best interests of those without mental capacity to make decisions. Some examples of action that can be taken through the Court of Protection are:
- Appointing Deputies
- Handling emergency situations where a decision needs to be made on behalf of someone without capacity such as where an interim Deputy needs to be appointed
- Handling Lasting Power of Attorney applications and any objections
- Making decisions on individuals being deprived of their liberty under the Mental Capacity Act.
How long does it take?
The process of applying to the Court of Protection to become a Deputy usually takes around 4 – 6 months although time frames can often be far longer. Other actions that can be taken through the Court of Protection, including removing a Deputy or making other welfare and financial decisions, can similarly take several months.
In exceptional circumstances, someone could apply to the Court of Protection to get an urgent court order in cases where someone’s life or welfare is in danger. For example, an individual can get an interim order for permission to make a one-off urgent decision for someone if their application to be their Deputy is yet to be approved.
How can I apply?
You can apply to the Court of Protection either by post or through a solicitor. If you will be carrying out the application process unaided, you can find all the paperwork needed to get started on the gov.uk website. It is, however, a complex process and the help of an experienced solicitor will ensure the process is completed in the correct way, perhaps avoiding lengthy and stressful court proceedings.
What is Deputyship?
Deputyship is when an individual is appointed to make decisions for and to manage the property and finances of someone who does not have the mental capacity to do so for themselves.
How to apply for Deputyship
In England and Wales, you can apply to the Court of Protection by post or via a solicitor.
While applicants don’t have to use a solicitor, getting a Court of Protection Order can be a complex process. The advice of an experienced solicitor can mean the difference between an efficient process and mistakes being made, disputes occurring and lengthy court proceedings.
The process involves: completing an Application Form, an Assessment of Capacity Form, a Deputy’s Declaration and a Supporting Information Form. These will be posted to the court either by a solicitor or by the applicant.
Next, an applicant for Deputyship must tell the person that they want to support that they have applied as well as three people that the person lacking capacity knows well, and the applicant will need to produce proof that this process has been followed.
After 14 days the court will review the application and the applicant may need to attend a hearing for the court to obtain more information. If successful, the applicant will receive a copy of the court order.
How long does an application take?
Applying to become a deputy typically takes 4-6 months but often the time frames can be longer.
How can Eric Robinson Solicitors Help
Sometimes family members and others close to people who require help in making their own decisions might disagree about whether the person they care about can make the decision for themselves, or what would be in their best interests regarding, for example, where they live, what kind of care they need, or their finances. This can be extremely stressful, and if no agreement can be reached then the Court of Protection can either make the decision, or appoint somebody specifically to do so.
The team here at Eric Robinson Solicitors can help you to make an application asking the Court of Protection to make a decision regarding whether somebody has capacity to make a certain decision, to make a decision in their best interests if they do lack capacity, or to appoint you, or one of our specialists, as Deputy so that decisions can be made and taken. Get in touch today to speak to one of our specialist team.
How much does applying to the Court of Protection cost?
Any court proceedings will have legal fees. The amount will depend on the type of court proceedings taking place. For example, applying to be a court Deputy involves paying a £371 application fee and a £100 assessment fee.
In some circumstances, applicants can be excused from paying fees and get a fee exemption. This is awarded on a means-tested basis. In very limited cases the applicant may be eligible for legal aid in order to pay for a solicitor to act for them in the Court of Protection, equally this depends on their income and ownership of property.
What is a security bond?
A security bond, or ‘surety bond’ is insurance that all Deputies need to take out to protect the assets of the person whose finances they are managing. It does not protect the Deputy from being accused of negligence or mismanagement of the finances they are responsible for.
The court will set the value of this bond based on the value of the assets being looked-after by the Deputy and can change this value at any time as the value of the assets change.
It is in place so that any losses to the value of the person’s assets can be reinstated quickly.
Who can be a Court of Protection Deputy?
Court of Protection Deputies are often close friends or relatives of the person they would like to make decisions for, or professionals such as solicitors or accountants. Either way the individual must be over the age of 18 and be able to prove that they have the skills to manage finances effectively.
Does Deputyship cease on death?
If the person with a Deputy managing their affairs dies, any Court of Protection application or Order will end. However the Deputy will need to contact the Court of Protection notifying them of the person’s death with evidence such as a death certificate before they are discharged from their duties. The Deputy may need to provide a final report, including accounts.
The security bond will remain in force for 2 years after the death of the individual who has a Deputy unless there is a court order cancelling it.
How much does Deputyship cost?
There is a £371 application fee to become a deputy and a £100 assessment fee. Once someone has been accepted, there is an annual supervision fee depending on what level of supervision the Deputyship requires. For example, it is £320 for general supervision, £35 for minimal supervision – this applies to some property and affairs Deputies managing less than £21,000.
Is Deputyship the same as Power of Attorney?
Both Deputyship and Powers of Attorney authorise someone to make decisions for and act on behalf of someone else.
Powers of Attorney can be given to a friend or relative by an individual in preparation for when they may lose mental capacity whereas Deputyship comes into play as an ‘emergency’ measure when an individual has already lost mental capacity and does not have anyone in place already to make decisions for them.
Deputies’ powers are more limited than those individuals with Powers of Attorney.
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