Court of Protection
The Court of Protection is a court that deals with decisions or actions taken under the Mental Capacity Act. If a person lacks mental capacity and has never made an Enduring Power of Attorney or Lasting Power of Attorney whilst they had the mental capacity to do so, then someone would need to apply to the Court of Protection to be appointed as their Deputy to make decisions about their health, welfare, financial affairs, or property. Applications to the Court of Protection for Health and Welfare are limited. Unlike financial deputies, you must seek the permission of the Court to proceed with an application, and the Court will need to be persuaded that it is necessary for a Deputy to be appointed. Applications to the Court of Protection for Property & Financial Affairs are more routine and you do not need the Court’s permission to make an application.
Court of Protection
You can apply to become someone’s deputy if the person you are trying to help does not have mental capacity to make decisions for themselves regarding their property and financial affairs and they have never made an Enduring or Lasting Power of Attorney in relation to their Property & Financial affairs.
A person can lack mental capacity due to a long-term illness such as dementia or Alzheimer’s or it could have come about through an unexpected injury or event. An assessment of capacity by a suitably qualified medical professional is required as part of the application process to confirm that the individual concerned no longer has mental capacity to manage their own property and financial affairs.
As Deputy, you will be authorised by the Court of Protection to help the person concerned make decisions when needed, or if they are unable to make that decision, to do so on their behalf.
What can the Court actually decide?
The Mental Capacity Act 2005 allows the Court of Protection to make certain decisions about a person’s financial matters (or their health and welfare) where that person lacks the mental capacity to make such decisions themselves.
The Court of Protection also has the power to appoint Deputies to make decisions on behalf of a person who lacks capacity. The Court has a wide range of powers which allows them to make decisions about a variety of issues including whether a person has capacity to make a particular decision; whether an action is in a person’s best interests; whether a person is being deprived of their liberty; the validity of lasting and enduring powers of attorney; the appointment of deputies; applications to make statutory wills or gifts; handling urgent or emergency applications; and the removal of deputies or attorneys.
What is the process for applying to the Court for a Deputyship Order?
The process of applying for a Deputyship Order to the Court of Protection at present can take anywhere between 12-18 months.
There are a number of different documents that need to be submitted at the time the application is made which include: Application Form (COP1) (to provide details of the proposed Deputy or Deputies and the individual concerned); Supporting Information form (COP1A) (to provide detailed infare the about the circumstances and the financial position of the individual); Assessment of Capacity (COP3) (completed by a registered medical professional); and Deputy’s Declaration (COP4) (the proposed Deputy will demonstrate that they are the right person to be appointed as the Deputy for the individual concerned).
What are the fees involved with the Court of Protection?
The Court Application fee is £365 plus an initial assessment fee of £100 if you are a new Deputy.
As a Deputy you will need to be supervised by the Court and there is a general supervision fee of £320.
The medical professional appointed to complete form COP3 will also charge a fee for completion of the court document.
There is also an annual insurance bond that needs to be paid, the amount of the bond depends on the value of the assets of the individual and the amount is set by the Court.
These costs, as well as any solicitor’s costs (usually fixed at £950 plus VAT) are usually recoverable from the person’s assets if you have permission from the Court to do so.
