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Court of Protection

 
 

There sometimes comes a time when a friend or family member is no longer mentally capable of dealing with their own affairs.  In situations such as these we would hope that they had made either an Enduring or Lasting Power of Attorney but if no such document exists it will likely become necessary to apply to the Court of Protection for a Deputyship Order.

What is a Deputy?
A Deputy is a person appointed by the Court of Protection to manage the affairs of a person who lacks mental capacity to manage their own affairs.  Deputies are normally family members or friends of the person lacking capacity but can also be professional people such as a solicitor or accountant.  The position is one of great responsibility and should not be undertaken lightly.

How to apply
The application process is complicated and involves you making an application supported by an independent assessment of capacity and a declaration.  You can either complete these forms yourself or you can instruct a solicitor to prepare and submit them on your behalf.  The assessment of capacity would normally be completed by the GP of the person for whose benefit the application is being made.

For straightforward applications the court aims to notify you of their decision with 16 weeks.  However in more complex cases the court may require further information and the process can take much longer.

Fees
Due to the greater complexity the fees, both of your solicitor and of the Court, are higher than those charged when preparing Lasting Powers of Attorney.  Please contact us to discuss costs etc.

What powers are granted to a Deputy?
As with Lasting Powers of Attorney, there are two types of deputyship, property and affairs and health and welfare.  In each case, the powers granted on the deputy would give any decision made by them the same authority as if it had been made by the person lacking mental capacity.

Duties of a Deputy
When acting as a Deputy and making decisions on behalf of another person, you will have specific responsibilities. These include a duty to:

  • act with due care and skill (duty of care)
  • not take advantage of the situation of the person who is lacking mental capacity (fiduciary duty)
  • protect the person against liability to third parties caused by the deputy's negligence
  • not delegate your duties unless authorised to do so
  • act in good faith
  • respect the person's confidentiality
  • comply with the directions of the Court of Protection.


 

If you are a deputy for property and affairs, you also have a duty to:

  • keep accounts
  • keep the person's money and property separate from your own, for example by using separate bank accounts.

Who to inform
If you are appointed Deputy it will be necessary for you to notify the banks, building societies, investment companies, pension providers etc of your appointment.  You should request that future correspondence is addressed to you.

Limits to a deputy’s powers
There are specific restrictions on a deputy's powers. A deputy has no authority to:

  • restrain the person who lacks mental capacity
  • make a decision for the person if they can make the decision themselves
  • go against a decision made under an existing power of attorney
  • refuse life-sustaining treatment for a person who lacks capacity to consent.

The court can cancel a deputy's appointment at any time if it decides the appointment is no longer in the best interests of the person who lacks capacity.

Every deputy order (the paper that states a deputy's powers) is different, and may contain further clauses and limits to specific powers. Examples include a limit on how much can be spent in a single transaction, or a cap on how much can be spent in a certain time period.

Supervision
The role of the Office of the Public Guardian (OPG) is to protect anyone who lacks the mental capacity to make decisions for themselves. The Court of Protection and the OPG are essentially the same institution but with defined functions: the Court makes the decisions and the OPG attends to all the administration.

The OPG supervises deputies, provides evidence to the Court and offers information to the public. They have a responsibility to check that you are doing everything you should be doing. This involves making sure that you comply with the terms of the Court order, and that the decisions you make on behalf of the person are in accordance with the Mental Capacity Act and in the person's best interests.

The level of supervision offered by the OPG depends on a number of factors:

  • the complexity and value of the estate of the person lacking capacity
  • the relationship and contact levels between the deputy and the person lacking capacity
  • the types of decisions the deputy makes
  • the level of support available to the person lacking capacity from family, friends and/or professionals
  • specific circumstances that the Court asks the OPG to monitor.

 

 

Supervision fees
A supervision fee must be paid annually. The amount will depend upon the type of supervision: the more supervision required the higher the fee. For current rates see the OPG website.

Support from the Office of the Public Guardian
As well as protecting the person who lacks capacity the OPG is also there to support people in their role as a deputy. There are numerous ways that the OPG will do this, and this is all included in the annual supervision fee.  The OPG services range from a telephone call to visits.

Deputy annual report
As a deputy you will have to provide an annual deputyship report to the court. This informs the court about the decisions that you have made. It should also provide summary accounts for the court to approve. You must detail the financial transactions of the previous year and provide further information concerning the person's affairs. You must also provide evidence, such as bank statements.

Emergency applications
If there is a clear risk that someone may suffer serious loss or harm, then you can make an emergency application to the court to become a deputy. This is only to be used if the court is required to make a decision within 24 hours.

Examples include:

  • urgent medical treatment
  • preventing someone being removed from the place where they live
  • to execute a statutory will or important financial transaction where the person's life expectancy is very short.

To make your emergency application, you should contact the court on 0300 456 4600 and ask to speak to an urgent business officer, who will discuss the case with you and make arrangements to receive your application and present it to a judge.