Court of Protection FAQ's

The Court of Protection is a Court within Her Majesty’s Courts and Tribunal Service. They make decisions on financial or welfare matters for people who can’t make decisions when necessary due to their lack of mental capacity. The Court can make one-off decisions to help these people or appoint Deputies to make ongoing decisions for them where a person has not made a Lasting Power of Attorney.

The Court of Protection will consider various factors when making decisions. Any decision made for, or on behalf of, a person who lacks capacity must be made in their best interests.

The Court of Protection processes applications for:

• Property and Affairs Deputies to look after an incapacitated persons finances and property; and,
• Personal Welfare Deputies to look after an incapacitated persons health and welfare

the Court’s involvement is also required when major decisions are being considered that fall outside the scope of a Deputy’s or Attorney’s powers. Examples of such major decisions are:

• making substantial gifts from the incapacitated person’s estate;
• deciding where the incapacitated person should live (where there is disagreement)
• Making and signing a will on behalf of an incapacitated person

Anyone over 18 years of age can be a Deputy. They must have sufficient skills to make responsible financial decisions for someone else. You can’t usually be a Property and Financial Affairs Deputy if you are or have recently been made bankrupt or have an IVA (individual voluntary arrangement)

A Deputy is responsible for making ongoing decisions on behalf of a person who lacks capacity. There are two types of Deputy:

• A Deputy for Property and Affairs to look after an incapacitated persons finances and property; and,
• A Deputy for Personal Welfare to look after an incapacitated person’s health and welfare

You need to think carefully before making an application to be a Deputy for Personal Welfare. Decisions about a person’s health and welfare can usually be made by applying the five principles of the Mental Capacity Act. It is unlikely you will be appointed Deputy, for example, if there is no disagreement over the incapacitated persons current treatment, care or where they live.

For further information about the responsibilities of a Property and Financial Affairs or a Personal Welfare Deputy please go to www.gov.uk and search Court of Protection. The Mental Capacity Act Code of Conduct which you can find on-line also contains useful information.

Yes. You can be appointed to act on your own, jointly with another person (where you must make decisions together) or jointly and severally with another person which means that you can make decisions together or individually. Many applicants like to be appointed jointly and severally with another person as this means there is always someone available to make a decision if, for example, one of the Deputies is unwell or on holiday. The Court will usually allow up to four people to act as Deputies.

No. Solicitors and Local Authorities will act as Professional Deputies although they charge an ongoing management fee for doing so. The Court also has access to a Panel of Deputies who are organisations experienced in acting as Deputy. They will charge fees to act as Deputy. If there is nobody able or willing to act as Deputy, or you cannot agree who should act, you can ask the Court to appoint somebody from the Panel. Debbie Anderson of Moore and Tibbits Solicitors acts as professional Deputy for more than fifty individuals who lack capacity to manage their property and financial affairs. Please see our separate Professional Deputyship Services handout for more information.

Yes, there is a fee of £365.00 that must be paid with each application. It is usual for Property and Financial Affairs Deputies to pay the fee and reimburse themselves from the incapacitated person’s funds once they have been appointed as Deputy.

If you are applying to be both a Property and Financial Affairs and Personal Welfare Deputy then you need to pay two lots of fees (e.g. £365.00 x 2).

If the Court decides that a hearing is needed to decide your application then a hearing fee of £485.00 is payable. If you cannot afford to pay the Court fee then you can apply for help with Court of Protection fees and this form is available on the Courts website, www.gov.uk, search Court of Protection and look for the link to fees and help with fees.

The Court of Protection is currently inundated with Applications. Property and Financial Affairs Deputy Applications are currently taking between 6 – 9 months from start to finish. This means that if your application is complete and nobody objects to it then you will usually receive your Deputyship order within 6 – 9 months of making your application. The timescale will, however, be longer if the Court needs more information or somebody objects to your application.

The legal fees for obtaining a standard Deputyship may be fixed by the Court, agreed by the proposed Deputy or may be assessed by the Senior Courts Costs Office, this all depends upon how involved the application is.

Our fees for obtaining a standard Deputyship Order from the Court are in the region of £2500.00 to £3500.00 plus VAT (depending on the complexity of the matter) and Court fees which are payable when the Deputyship Order has been issued and the Deputy has access to the incapacitated persons funds.

If there are urgent matters that need to be dealt with before a Deputy is appointed you can ask the Court within the application form to make an urgent interim order. You should set out clearly what you need from the Court.

For example:

1. Release of incapacitated persons bank account to pay care/nursing home fees;
2. Authority to sign tax returns on behalf of the incapacitated person;
3. Authority to terminate the tenancy on behalf of an incapacitated person.

You must explain to the Court why the matter cannot wait until the appointment of a Deputy and why an urgent order is required. Evidence of any bills to be paid, such as a bill from a nursing home or a HMRC tax reminder, must be supplied along with full details of the incapacitated persons bank account to be used to draw down funds.

Once you have been appointed as a Deputy the Court will write to you. If you are a Deputy for Property and Financial Affairs you will need to take out a Security Bond which must be in place before the Court will release the order appointing you. The Courts letter will tell you how to arrange the Security Bond.

The Court requires that all Deputies for Property and Financial Affairs arrange a Security Bond with an insurer. This is essentially an insurance policy designed to protect the incapacitated persons assets in the unlikely event that the Deputy misuse them. This is standard business practice and is not intended to reflect on the Deputy’s personal integrity. The Court sets the level of security when appointing a Deputy and the sum will be proportionate to the amount of funds that the Deputy will have conduct over including the value of any non-cash assets such as a house or land.

Once your Security Bond is in place the Court will send you sealed Court orders confirming that you have been appointed as Deputy. The order sets out what you can (and can’t) do as Deputy and the Court will also send you a guidance sheet about what you should do next.

A Deputy order will not allow you to sell a property or land that is jointly owned (where one of the owners lacks mental capacity). You will need to make a separate application to the Court to appoint a New Trustee to enable the property to be sold.

The Office of the Public Guardian (the OPG) supports and supervises Deputies appointed by the Court. The OPG and the Court are separate organisations within the Ministry of Justice. Once you have been appointed as Deputy and receive your Court orders, the OPG will write to you with more detailed guidance about your role as Deputy.

The OPG will send you invoices for the deputy assessment fee and annual supervision fee which the Deputy can pay from the incapacitated person’s funds.

The OPG will send you invoices for the deputy assessment fee and annual supervision fee which the Deputy can pay from the incapacitated person’s funds. Property and Finance and Health and Welfare Deputies are required to file annual Deputy Reports with the OPG. The Deputy will be required to detail the decisions that they have made on the incapacitated person’s behalf during that year and detail the income received and expenses paid out on behalf of the incapacitated person. We are happy to assist any Deputy with the completion of the annual deputy report.

A Deputy order will not allow you to sell a property or land that is jointly owned (where one of the owners lacks mental capacity). You will need to make a separate application to the Court to appoint a New Trustee to enable the property to be sold.