Court of Protection
What does the Court of Protection do?
The Court of Protection acts in the interest of people who “lack mental capacity” and cannot make decisions on financial and welfare matters at the time they need to be made.
People often ask if they can get a power of attorney for someone who has lost their mental capacity – unfortunately in order to enter into a lasting power of attorney (LPA) the person must have capacity at the time it is established.
In the event that someone loses capacity without having an LPA in place the Court can appoint a ‘deputy’ who is someone who can make decisions for someone who lacks capacity.
What is the difference between a Court of Protection deputyship order and an LPA?
An LPA allows a person (the ‘donor’) to appoint up to four people to act as their attorney. There are two types – a health and welfare LPA and a property and finance LPA – and the attorneys have wide ranging powers to act in the donor’s best interests.
A deputy, on the other hand, is appointed by the Court and not by the donor, who will not have the capacity to make this sort of decision. The Court can appoint more than one deputy to act and the deputies will need to make a formal application to the Court to be considered.
The Court has discretion regarding the powers that it will grant to deputies and it is sometimes necessary for the deputies to apply to the Court for further powers or for the Court to authorise further actions (such as drawing up a statutory will). If the application is granted, the deputy will need to report annually to the Court of Protection.
A family member or solicitor can be appointed as a deputy and, as with an LPA, it is possible to be appointed as a personal welfare deputy or a property and financial affairs deputy.
An application to the Court of Protection can be lengthy and is generally more expensive than entering into a lasting power of attorney. It is always preferable, therefore, for a person to enter into an LPA where they have capacity to do so.
Who can become a Court of Protection deputy?
Anyone over the age of 18 can apply to the Court of Protection to be a deputy but it is usually someone who is close to the person lacking capacity. A solicitor can also act alone or jointly with family and friends; this is useful where there are complex assets or family disagreements.
How do I apply to become a Court of Protection deputy?
A series of forms have to be completed and sent to the Court of Protection along with a capacity assessment completed by a medical professional. There is quite a lot of paperwork involved and there is a strict list of people who will need to be notified within a certain timeframe and the Court can issue interim orders requesting further information.
A solicitor will be able to assist with the preparation and submission of the forms; dealing with requests for further information from the Court of Protection; and arranging for the capacity assessment to take place.
Once appointed as a deputy, you’ll be supervised by the Office of the Public Guardian (OPG). They’re authorised to contact you or visit you to check you’re being an effective deputy. They can also give you advice and support.
In addition, as an appointed deputy you will have a lot of legal obligations to fulfil including keeping detailed records and producing an annual report for the Court of Protection.
A question that we are frequently asked is what should I do if a person that lacks mental capacity doesn’t have a will? The answer is that if there is reason to believe that it is in that person’s best interest for a will to be put in place then an application can be made to the Court of Protection.
A deputy or attorney does not have the power to produce a will for a person lacking capacity, only the Court can authorise this. It is essential that any application is considered to be in the best interest of the person who lacks capacity and the Court will scrutinise the application carefully.
Extensive experience of dealing with the Court of Protection
LCF Law has decades worth of experience in acting as a professional deputy and dealing with Court of Protection applications.
Our services include:
- Acting as a professional deputy
- Deputyship applications for both welfare and property
- Applications for a statutory will, gifting and the sale of property.
- Advising deputies on their duties and assisting them with preparing reports and managing finances
We help people who have put themselves forward to act for a relative as deputy. The obligations and demands that come with the role can be time consuming and demanding. We also know the complex emotions involved when the decision is made to hand over deputyship. We exist to make your life easier. And we work hard to simplify all the complexity involved.
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