Laura Stafford
Solicitor & Head of Private Client
Phone: 0113 200 7480
Email: ls@averywalters.com
Our Private Client Specialist's Guide to Court of Protection
We provide a free initial no obligation consultation to discuss your options in respect of any Court of Protection application. At this meeting we can discuss the process, likely costs and timescales.
If you need the authority to manage the property and finances or personal welfare of a person who lacks mental capacity to manage their own affairs, you may need to make an application to the Court of Protection to be appointed as their ‘Deputy’.
This may be the case because the individual in question did not put in place Lasting Powers of Attorney or does not have the mental capacity to put them in place now due to suffering from dementia or perhaps, they have lacked mental capacity since birth due to severe learning disabilities or since suffering a serious brain injury or illness.
If you are in a position where you are looking after the affairs of a person who lacks mental capacity to manage their own affairs, then you may need to may an application to the Court of Protection to be their Deputy to manage their affairs long term.
Deputyship applications can be complicated, involving lots of paperwork and bureaucracy but we’ll make it as easy as possible without using jargon.
The application process is lengthy and stringent as the Court must ensure that you, as the applicant are an appropriate person to manage the individual’s affairs. This is especially important given they may not have selected you if they had mental capacity.
If you are appointed as a Deputy by the Court of Protection, this will give you the legal authority to manage the individual’s affairs.
Before you consider making an application to the Court of Protection you should check whether the person in question has a Lasting Power of Attorney, Enduring Power of Attorney, Living Will or a Deputy already acting for them. We can assist you with searching the register held by the Office of the Public Guardian (OPG) of registered Enduring and Lasting Powers of Attorney or by contacting the Court of Protection.
It may not be necessary for you to make an application to become a Deputy if you only need to manage the person’s benefits. In these cases, you can apply to become an Appointee. Please ask us for more information if you need help with this.
If there are no documents in place, and you need to manage the person’s affairs, then a Deputyship application may be necessary.
Applying to become a Deputy can be a stressful and lengthy process, especially if you need to act at short notice i.e., to pay for care. In certain circumstances, we can assist with making expedited applications.
There Are Two Types of Deputy
Around 55% of the UK population pass away without leaving a valid Will. Dying intestate can make estate matters more complicated, expensive and could potentially take longer to deal with. This will no doubt cause stress for your family and loved ones. As well as obtaining peace of mind, putting in place a Will can help you achieve many other objectives:
• Property and Financial Affairs.
If appointed, this would give you the authority to manage and make decisions about property, paying bills, pensions and accounts.
• Personal Welfare deputy
If appointed, this would give you the authority to make decisions about medical treatment and how someone is looked after.
You cannot become someone’s personal welfare deputy if they are under 16.
Who Can Become a Deputy?
There can be more than one Deputy appointed and this appointment can be joint, or joint and several.
The court will only usually appoint a personal welfare deputy if there are doubts as to whether decisions will be made in the someone’s best interests i.e. if family members disagree about care or if someone needs to be appointed to make decisions about a specific issue over time, i.e. where someone will live.
You can apply to be just one type of Deputy or both. If you are appointed, you will receive a court order setting out what you are allowed to do and what your duties and responsibilities are. We can advise you about your responsibilities before you apply to the Court of
Protection.
If you want to become a Deputy, you will need to be 18 or over sand possess the skills to manage finances on behalf of someone else. Usually, Deputies are close relations or friends to the person who lacks metal capacity.
If there is no one suitable to act as a Deputy, then a professional could assist. We can assist you with professional deputyship applications or provide advice where a specialist deputy supplied by the Court (known as a ‘panel deputy’) is appointed.
How To Apply To Become A Deputy
Application forms are required to be sent to the Court of Protection with lots of information and supporting evidence for the application. A mental capacity report about the person will also be required from a qualified medical practitioner, together with the court application fee.
We can compile the required information, prepare the application forms and submit these on your behalf.
Responsibilities As A Deputy
Acting as a Deputy comes with numerous responsibilities and duties.
• You must act in the individual’s best interests
• Consider their past transactions/history/gifting
• Apply a high standard of care. You may need to involve doctors, solicitors or others to include family members for advice.
• Try to help the person understand decisions and what is happening using simple explanations.
• Add decisions to your annual report which must be submitted to the Office of the Public Guardian.
You must keep the individual’s finances separate from your own and keep records and accounts or decisions and expenditure/income received.
We can also provide advice on things Deputies cannot do, or assist you if you know a Deputy is mistreating or neglecting the individual, or acting dishonestly or fraudulently.
After You've Made Your Application
Once the court have received and issued your application, as part of the application process, you will be required to serve a formal notice on certain people, to include the person the application is about, even if they don’t understand this. The people who have been notified then have an opportunity to object to the application and to your appointment if they think there are grounds for this. However, there are strict grounds on when and how a person can object. You should normally notify at least three people to include relatives, social worker or doctors.
There are strict timescales to deal with this notification process and you are required to confirm to the court that notice has been given by using and sending in standard forms to confirm this.
Once this has been dealt with, the court will then consider the application will tell you whether it is approved or rejected, whether they need more information to assess the case, whether there needs to be a further hearing to assess o
When You're Appointed As A Deputy
You’ll receive a court order telling you what you can and cannot do.
Once you have the order appointing you as the Deputy, you can legally start acting on the individual’s behalf.
In order to use the order and begin managing the individual’s affairs, you will need to send a copy of the order to banks or other institutions. This proves to them that you have the legal authority to act on the individual’s behalf.
Further Court Orders
You will need further court order if you want to sell a property that’s jointly owned by the individual and another person or if you want to make a one-off decision that is not covered by the court order appointing you as a Deputy.
Supervision & Visits By The Office Of The Public Guardian
You will be supervised by the Office of the Public Guardian to ensure that you are carrying out your duties as a Deputy effectively. In some cases, a Court official may come to visit you to ensure that you are carrying out your duties correctly, that you understand your role and to ensure you have the right level of support. They may also visit to investigate any complaint. Any visit is arranged with you in advance, and you will be told about the reason for the visit.
For the first year of your Deputyship this supervision is ‘general’. After the first year, if you are managing below a certain sum of money, and are deemed not to require general supervision, this will be reduced to ‘minimal’ supervision.
Ultimately, the Court of Protection is there to support you in your role and can therefore be contacted to answer queries and to provide support and guidance.
Accounts, Gifts & Expenses
When appointed, you will be required to send an annual report to the OPG each year explaining what decisions you have made and provide accounts setting out all income and expenditure of the person in question. We can assist you with this on an annual basis if required. All you need to do is keep a record of all financial statements and receipts.
You should keep all bank statements, contracts for services/trades, receipts and letters or emails about your activity.
Generally, you cannot undertake gifting for the individual other than reasonable and usual gifting that the person undertook when they had mental capacity. For large gifts which may impact on the value of the estate, or could reduce the level of care the person receives, you must obtain court approval. We can assist you with this.
You can claim expenses back for things you must do to carry out your role as a Deputy to include phone calls, postage and mileage/travel costs.
However, you cannot claim travel costs for social visits or time spent.
We understand that this process can be daunting, especially at a time when you are trying to look after a vulnerable or elderly person. We can advise you throughout the matter, without using legal jargon to ensure you understand everything.
We can deal with the whole process for you, from checking whether any documents are already in place, preparing and submitting the application and ensuring you are aware of your responsibilities as a Deputy, and all ongoing obligations.
Contact us on 0113 2007480 or email us on info@averywalters.com to arrange your free initial, no obligation consultation with a specialist.
* Laura Stafford is the SFE accredited memberand a full member of STEP