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Court of Protection Deputyship

Court of Protection Solicitors

When you're looking after family members and those close to you, of course, you want to put their needs and wants above all else. Sometimes, however, there may come a point when they are unable to make significant decisions about their health, welfare, or finances due to a lack of mental capacity.

If you find yourself in this situation, our UK-based network of Court of Protection solicitors is here to support you in safeguarding your vulnerable loved one, keeping their best interests and your well-being at the forefront.

For more information and support about Court of Protection matters, contact our legal assessment team today and get your free case evaluation and no-obligation quote for legal help from our UK-based wills, trust, and probate solicitors.

What is the Court of Protection?

The Court of Protection is responsible for making decisions regarding financial or welfare matters for individuals who are unable to do so themselves because of a lack of mental capacity.

Their role includes:

• Deciding if someone can make certain decisions;

• Appointing deputies to make ongoing decisions for those lacking capacity;

• Granting permission for one-off decisions on behalf of others;

• Handling urgent situations where immediate decisions are necessary;

• Addressing matters related to powers of attorney, statutory wills or gifts, and issues concerning the deprivation of liberty under the Mental Capacity Act.

The Court of Protection is based in London and most cases are overseen by district judges and a senior judge, although High Court judges may also hear cases or, in some instances, they may be transferred to local courts for hearings.

The Court of Protection's main job is to step in when individuals are unable to make important decisions about their welfare or finances. In cases where an individual is assessed as lacking in capacity, the Court appoints a trusted individual, known as a 'deputy.'

How can a Court of Protection solicitor help you?

At Lawhive, our network of experienced Court of Protection solicitors offers a range of services, including:

• Helping friends or family members appointed by the Court to make decisions on behalf of their loved ones in their best interest;

• Taking on the role of professional deputy for clients;

• Helping individuals manage brain injury compensation claims on behalf of someone else;

• Assisting in creating and approving statutory wills for individuals lacking capacity;

• Guiding individuals through the process of giving gifts on behalf of someone lacking capacity;

• Assisting in officially challenging decisions made by deputies or attorneys;

• Establishing personal injury trusts to best manage compensation funds;

• Providing legal support to challenge restrictions imposed by hospitals or care homes under the Deprivation of Liberty Safeguards;

• Helping with urgent decisions through emergency applications to the Court of Protection.

What is a Court of Protection deputy?

A Court of Protection deputy is someone chosen by the Court to make decisions for someone when they can't do so themselves.

Unlike an attorney, which is appointed while someone is still able, a deputy is appointed by the Court, usually when an individual hasn't chosen an attorney, or if many decisions need making on their behalf.

The Court decides how long the deputy serves, the level of oversight needed, and any fees involved. Deputies must keep records of spending and may need to pay a deposit before being given access to an individual's money.

If a person's financial situation is complex, the Court may appoint a professional deputy instead (such as a solicitor) whose fees are often paid from the individual's assets.

Sometimes, if a person lacks capacity, the Court may decide not to appoint a deputy at all and instead make a one-time decision themselves on behalf of the individual and in their best interest.

Types of deputy

There are two types of deputies:

Property and Financial Affairs Deputy

In this type of Court of Protection Deputyship, appointed deputies are responsible for handling a person's bills and managing their finances on their behalf.

Personal Welfare Deputy

In this type of Court of Protection Deputyship, deputies make decisions in the best interests of an individual related to medical treatment and care arrangements such as:

• Where they'll live;

• Who they can have contact with (though, they can't permanently ban contact);

• Whether that person should receive medical treatment (except for life-saving treatment and certain procedures).

A personal welfare deputy is usually appointed if:

• There is uncertainty about decisions being made in the person's best interests, such as family disagreements regarding care; or

• A decision needs to be made about a specific issue over time, such as where the person lives.

The Court typically won't appoint a healthcare or welfare deputy unless there's an ongoing need for welfare decisions to be made. In cases where only a one-time decision is required, the Court usually makes the decision themselves instead.

It's important to note that if a person is under 16, the Court will not appoint a personal welfare deputy for them.

When can the Court of Protection appoint a deputy?

The Court of Protection can appoint a deputy if someone lacks the mental capacity to make decisions when needed.

Someone may lack mental capacity if they have a brain injury or illness, Dementia, Alzheimer's disease, or a severe learning disability.

If there are doubts or concerns about an individual's ability to make decisions regarding their financial affairs and understand everyday money management tasks, a capacity assessment for deputyship is carried out by qualified health or social care professionals to decide whether appointing a deputy is necessary to safeguard an individual's financial interest and ensure their wellbeing.

When a deputy is appointed, they have the authority to make decisions on a person's behalf.

Who can the Court appoint as a deputy?

The Court can appoint a friend, family member, or professional as a deputy. Typically, they are close relatives or friends of the person who needs help making decisions. However, they must:

• Be 18 years or older

• Have the mental capacity to be a deputy.

If someone wants to apply to the Court of Protection to become a deputy, they need to show that:

1. Their appointment would benefit the individual;

2. They have the necessary skills to carry out the role responsibly.

The Court may appoint two or more deputies either:

• Jointly, where all deputies must agree and act together;

• Jointly and severally, where deputies can act together or separately.

Sometimes, deputies are appointed jointly for some matters and jointly and severally for others.

Alternatively, they may appoint professionals such as accountants, solicitors, or representatives from the local authority (like social workers) to act as Court of Protection deputies.

Decisions a deputy isn't allowed to make

A deputy can't make decisions they aren't authorised to make by the Court of Protection. For instance, if a deputy is only authorised to make financial decisions for an individual, they can't make important decisions regarding the person's medical treatment or personal care on their behalf unless the Court makes them a personal welfare deputy also.

Deputies also can't make decisions that:

• An individual is capable of making themselves;

• Restricts an individual's freedom of movement (unless the Court of Protection authorises this);

• Involve using force to stop someone from doing something or going somewhere;

• Goes against decisions made by an attorney acting under a lasting power of attorney;

• Stops the individual from receiving treatment that would help them stay alive for longer if they develop a life-threatening medical condition in the future;

• Go against any decisions already made in an advance decision.

Further, if a court appoints two or more deputies in different ways (either jointly or jointly and severally), decisions made by those deputies must match their appointment type.

How to apply for Court of Protection Deputyship

If you meet the criteria, you can apply to be either a personal welfare deputy, property and financial affairs deputy, or both.

The application process varies depending on which Court of Protection deputyship you're applying for and you'll also need to pay an application fee.

Applying to be a personal welfare deputy

To apply to be a personal welfare deputy you should:

1. Download and complete the COP1 application form, assessment of capacity form*, deputy's declaration, and supporting information form.

2. Name at least three people who know the person you're applying to be a deputy for, such as relatives, social workers, or doctors.

3. Send the completed forms, including two copies of the application form the Court of Protection with a cheque for the application fee.

4. Notify named individuals within 14 days of the application being issued, including the person you're applying to be a deputy for and the three or more people named in your application.

*If you can't get an assessment of capacity, you'll need to fill in a witness statement explaining why you believe the person lacks capacity.

After 14 days of submitting your application, the court will review it and you will be informed whether the application is approved or rejected, and any other relevant information or requests.

If a hearing is required, you'll receive notice of the date and must inform the person you're applying for within 14 days.

Applying to be a property and financial affairs deputy

To apply to be a property and financial affairs deputy, you should:

1. Tell the person you're applying to be a deputy for, including what having a deputy means for them and where they can get advice to discuss the application;

2. Give them the appropriate notification and acknowledgment forms to complete.*

3. Notify connected individuals such as relatives, social workers, or doctors about the application by post, email, or in person.

4. Complete the required forms within three months of informing connected individuals including the assessment of capacity form, deputy's declaration, supporting information form, and acknowledgment form.

5. Submit the forms online or by post.

*If the person is unable to complete the forms, you should return the application and notification form with only the notification part filled in within 14 days.

Upon receipt of your application, the Court of Protection will review it and inform you of their approval or rejection, and any further information.

Usually, there's no hearing for property and financial affairs deputy applications. However, if there is, you may have to pay a court fee.

Court of Protection deputyship application checks

When you apply for a Court of Protection deputyship, the Court will look at whether the individual to whom the application relates requires a deputy or alternative assistance.

They'll also check that there are no objections to your appointment.

After appointment as deputy

If the Court appoints you as a deputy, you'll receive a court order outlining your powers and limitations.

The Office of the Public Guardian will support you in your duties. When you start, you'll be given a point of contact at the OPG to help you, and you'll have a settling-in call.

The deputyship will continue until the court order is changed, revoked, or expires.

Court of Protection Deputy roles and responsibilities

The Deputy Standards from the Office of the Public Guardian guide deputies appointed by the Court of Protection to make decisions for individuals lacking capacity.

Deputies must meet all relevant standards and keep records of important decisions.

Deputies who aren't professionals (referred to by the OPG as lay deputies) don't have to be legal experts. Still, they should have a basic understanding of the law to carry out their duties.

Awareness of the Mental Capacity Act 2005 (MCA)

The Mental Capacity Act 2005 applies to England and Wales. Its main goal is to promote and safeguard decision-making that:

1. Empowers individuals to make decisions for themselves whenever possible and

2. Protect those who lack capacity by providing a flexible framework that prioritises individuals in decision-making and allows for planning for future incapacity.

The Mental Capacity Act 2005 Code of Practice offers guidance for deputies, outlining their responsibilities when acting or making decisions on someone else's behalf. In particular, newly appointed deputies may find chapters 1 to 5 and 8 of the Code of Practice helpful.

Understanding authority and duties of deputyship

Upon appointment, deputies will receive an order from the Court that specifies what they can and cannot do. For example, a deputy might be allowed to decide to buy or sell property for an individual.

Deputies must understand the limits on their authority concerning the court order and only make decisions following their appointment type.

Completing duty reports

Deputies have to submit a report every year (or as often as required by the OPG) detailing the decisions they've made.

The report should cover the reasons behind decisions and why they were in the best interests of the person they're deputy for.

Financial deputies will also have to provide financial information, too.

Paying deputy & supervision fees

Deputies have to pay certain fees to the OPG on behalf of their client including:

• Deputy assessment fee: A one-time payment that covers the cost of evaluating the level of supervision required for a deputy;

• Supervision fees: Yearly payments that cover the cost of overseeing deputies.

Deputies can pay these costs either from their client's funds or their funds and then get reimbursed from their clients.

Getting a Security Bond

A Security Bond is a guarantee to cover financial losses if a deputy fails to fulfill their duties as directed by the Court, whether accidentally or deliberately. The Court decides how much the bond should be worth and the deputy has to pay premiums each year for the bond.

You can pay the bond using the person's money or your own, which can be reimbursed from the estate once you have access to it.

If the value of a deputy's client's estate changes, they need to check if the bond still provides enough coverage.

You don't need to set up a bond if you're representing a local authority, or if the court doesn't think it's necessary because the value of the estate is too small.

Fiduciary duties

Deputies should not exploit their position and their interests should never interfere with their duties.

Deputies are also not allowed to pass on their decision-making responsibilities, however, they can get expert or professional advice from a solicitor, for example.

Making applications to the Court

Deputies may need to submit applications to the Court of Protection at times. For example, they might need to ask permission from the Court to change the terms of the deputyship for selling a property on behalf of their client.

Assessing whether the deputyship is still required

If a client becomes capable of managing their affairs again, then the deputy must apply to the Court of Protection to end the deputyship.

Deputies are also required to notify the OPG if their client dies.

Informing the OPG of any other relevant changes

When a person applies to become a deputy, they fill out a deputy declaration form. As part of the duties of their appointment, deputies must notify their case manager or the OPG directly if they are:

• Convicted of a criminal offense;

• Declared bankrupt, are subject to an Individual Voluntary Arrangement, or receive a Debt Relief Order;

• Are involved in a business facing insolvency;

• Unable to continue as a deputy.

Making decisions in the client's best interest

Deputies must make sure that all decisions are made in their client's best interest.

In doing this, they should consider their client's past wishes and feelings, as well as the beliefs and values that would have influenced their approach if they still had the capacity.

Clients should also be involved in the decision-making process as far as possible,e taking into account their capacity to make decisions at the relevant time.

Visiting the client

Deputies must engage with their client appropriately considering their circumstances and maintain regular contact with family members and carers, ensuring their involvement in decision-making when appropriate.

Deputies must also visit the client at least once a year to assess their needs and communicate with them using appropriate methods.

Deputies should conduct regular reviews of the client's needs, spending, and capacity to manage their finances.

Financial management

Deputies authorised to make financial decisions must:

• Apply for all eligible benefits for clients within three months of receiving the deputyship order and review benefits regularly;

• Keep the client's funds separate from theirs unless there is an existing arrangement like they are married or civil partners;

• Make sure all tax responsibilities are met;

• Aim to maximise returns on investment with minimal risk and regularly review investments;

• Ensure timely payment of the client's financial liabilities, like care fees and utility bills;

• Make sure the client has a personal allowance for necessities.

Financial record-keeping

Deputies making financial decisions are also required to keep financial records up to date, including keeping a transparent record of significant financial decisions and ensuring that all significant financial decisions prioritise the best interests of the client without any conflicts of interest.

With regards to gifts, deputies also have a responsibility to make sure decisions that relate to gifts align with the authority granted by the deputyship order.

Property management

Deputies with the relevant authorisation to make decisions regarding their property or where the client lives have a responsibility to:

• Make sure the client's property is secure and maintained adequately with the appropriate building and contents insurance coverage;

• Make sure any decision to sell property aligns with the client's best interest and that the property is sold at market value;

• Only sell a property if authorised to by the deputyship order.

Decisions regarding health and welfare

Health and welfare deputies may make decisions on where their client lives and who they have contact with. They also may be required to make decisions relating to medical treatment. In the course of this, they should:

• Keep details about decisions regarding their client's living arrangements;

• Choose a suitable place for the client that aligns with their needs or collaborate with funding providers to choose suitable accommodation;

• Not stop anyone from contacting their client without careful consideration, which might require a court order;

• Keep records of any decisions made regarding the client's healthcare, including consenting or refusing treatment (except life-sustaining treatment);

• Inform doctors, care, providers, and health professionals about the Court of Protection court order;

• Review their client's health and welfare needs every year to ensure they are met and unchanged.

How much does it cost to become a Court of Protection deputy?

There are fees associated with becoming a Court of Protection deputy.

Depending on the type of deputyship you're applying for and the financial circumstances of yourself or the person you're applying for, you may not have to pay an application fee.

Further, exemptions or reductions for supervision fees may apply if the person you're a deputy for receives certain benefits or has an income below £12,000.

Do you need a solicitor to apply for a Court of Protection deputyship?

There is no legal requirement that you must have a solicitor to apply for a Court of Protection deputyship. Some individuals do choose to represent themselves as litigants in person.

However, you may need assistance from a specialist wills, trust, and probate solicitor if the case is complicated or you don't feel confident with the legal processes involved.

Court of Protection solicitors are familiar with the forms and legal language used in these cases and can help with completing complicated forms and understanding legal terms and concepts.

Court of Protection proceedings can also be emotionally challenging in some circumstances, especially for family members. Using a solicitor can help ease the emotional burden and deal with the application process on your behalf.

How can Lawhive help?

At Lawhive, our network of Court of Protection deputyship solicitors is dedicated to assisting individuals with various issues related to lack of mental capacity and powers of attorney.

Whether you're applying for deputyship or encountering other legal challenges in this area, our experienced solicitors are here to help. We understand the complexities involved in Court of Protection matters and are committed to providing personalised advice and support tailored to your specific situation.

With our free legal assessment, you can gain valuable insights into your case and learn about the options available to you. Our goal is to make legal assistance accessible and convenient for our clients. That's why we offer fixed-fee services and the flexibility of remote consultations. No matter where you are in the UK, you can rely on Lawhive to connect you with the very best solicitor for your needs. Contact us today for a free case evaluation.