Sadly there are times in people’s lives when they no longer have the mental capacity to deal with their own affairs and require the support of others to act on their behalf. This may be due to age related illness, dementia or an accident. If a person does not have a Lasting Power of Attorney, the Court of Protection can help look after their best interests. The Court of Protection is based in London,
but has local hubs around the country that you can contact if you need use of their services.
In this guide we will cover what the Court of Protection can do to help and when you might need them. We have also consulted our legal experts Ashtons Legal to help answer some FAQs on the role of a deputy.
What is the Court of Protection?
The Court of Protection is a legal court that deals with matters regarding vulnerable people and their ability to make decisions independently. It was established as part of the Mental Capacity Act of 2005. The Court of Protection (often referred to as the COP) has the power to make decisions on finance, property, health or welfare. The court is also able to pass these powers onto another party (a deputy) usually a family member or friend.
What does the Court of Protection do?
There are many situations and circumstances where the Court of Protection might get involved. In all cases their aim is to do the best for a vulnerable person by protecting their rights and welfare. In this guide we will go into more detail on one of the most important roles of the Court of Protection – appointing a deputy. However, listed below are some of the other important things the Court of Protection can oversee.
- Appointing a deputy.
- Deciding whether a decision taken on behalf of a person is appropriate.
- Settling disagreements on mental capacity that can't be settled elsewhere.
- Challenges to an authorisation for the deprivation of liberty safeguards or disputes about their use.
- Removing an attorney under a lasting power of attorney or removing a deputy.
- Making an urgent healthcare or personal care decision where there is no Deputy or Power of Attorney.
- Deciding whether an advance decision or LPA is valid.
- Approving a Statutory Will.
How to apply to the Court of Protection
To apply to the Court of Protection on any of the matters above, visit gov.uk website and fill out the relevant form. You can also call them on 0300 456 4600 or email email@example.com
Statutory Wills (Wills made on behalf of someone without mental capacity) have to be approved by the Court of Protection. Click the link to read our guide on 'How to Make a Statutory Will.
What is a deputy?
One of the key roles of the Court of Protection is appointing a deputy for someone who no longer has the mental capacity to make decisions on their own behalf. A deputy is only needed if there isn’t a Lasting Power of Attorney already in place.
There are two types of deputy: personal welfare deputies, and property and finance deputies (or property and affairs deputy). Personal welfare deputies are appointed when there is a disagreement over the type of care someone should receive. We asked our legal experts, Ashtons Legal, to answer some frequently asked questions regarding deputyships.
Ask Ashtons: Deputyships
Who can become a deputy?
Anyone can become a deputy. Most commonly friends or family of the vulnerable person become their deputy, however, in some cases a solicitor might be appointed as someone's deputy. To become a property and affairs deputy you must have the skills and knowledge to deal with property and finance. Becoming someone's deputy means taking on a lot of responsibility and shouldn't be taken lightly.
What does a deputy do?
What a deputy does, and the extent of their powers, are decided by the Court of Protection. The best interests of the person needing a deputy must be how a deputy makes decisions. A deputy can only make decisions that the person in question is unable to make themselves and must involve the person and their family fully in any decisions that are made. This is a requirement of the Mental Capacity Act 2005.
Every year a deputy must make a report to the Court of Protection regarding the decisions they've made, the state of the person they are making decisions for and any other relevant things that have happened or are upcoming.
These are some of the things a deputy might do or make decisions upon:
- Making applications to the Court of Protection
- Tax returns
- Payroll and employment of care teams
- Setting of budgets with clients, family and other professionals and monitoring these
- Arranging investment of a damages award through a specialist independent financial adviser
- Payment of day-to-day bills
- Preparation of annual accounts and reports
- Liaising with Case Managers and other professionals in respect of care teams, therapists and other needs
- Purchase of new properties
- Working with architects and others in getting properties adapted to meet a person’s needs
- Consideration of statutory funding availability
- Dealing with benefits applications
- Ensuring availability of funds to meet a person’s day-to-day needs.
Can there be more than one deputy?
Yes, multiple deputies can be appointed for someone with reduced mental capacity. Multiple deputies can decide whether they will be:
- Together ('joint deputyship’), which means all the deputies have to agree on the decision.
- Separately or together (‘jointly and severally’), which means deputies can make decisions on their own or with other deputies.
Do I need to pay to become a deputy?
Yes. You will need to pay for the application to become a deputy and an annual supervision fee.
- Application Fee = £365 (more if a hearing is required)
- Annual Supervision Fee = £320 for general supervision
In some cases, often where a deputy is managing assets worth less than £21,000, only minor supervision will be needed at an annual cost of £35.
What can't a deputy do?
There are some decisions that a deputy can not make. These include: stopping life-sustaining treatment, making a Will, adjusting an existing Will or making large gifts using their money. You are also unable to hold money or property in your name on their behalf.
How do I apply to become a deputy?
You can apply to become a deputy on the gov.uk website. Make sure you have read the requirements and download and fill out the necessary forms.
Planning ahead is a much better option and by setting up a Lasting Power of Attorney you can ensure your wishes are clear incase you were to lose the capacity to make your own decisions. It will also be cheaper and take less time and work to approve.
Ashtons Legal is a large firm of solicitors with a team which includes lawyers who are members of Solicitors for the Elderly, those who are accredited by the Society of Trust and Estates Practitioners, a specialist on Continuing Care funding issues, and specialists to advise where someone holds overseas assets as well as property in the UK. If you would like further information, please contact Ashtons Legal by following the link.