Court of Protection Solicitors and Incapability
What is the Court of Protection?
If a person becomes incapable, through old age, illness or an accident, of running their own financial affairs, then unless they have an Enduring or Lasting Power of Attorney already in place, someone will have to be appointed to deal with their affairs for them. In such circumstances, it is the Court of Protection (or CoP) which will need to establish what is in someone’s best interests.
There are many factors to consider when applying to the Court and the forms and procedures can be lengthy. We have solicitors with experience of all aspects of CoP work. From our four offices in Salisbury, Fordingbridge, Andover and Amesbury, we cover Court of Protection applications for clients throughout Wiltshire, Hampshire and Dorset.
For FREE initial phone legal advice about any aspect of the court of protection, call us on FREEPHONE 0800 1404544, or 1 of our local office numbers, today.
How our Court of Protection Solicitors Can Help You
Our team really do appreciate that the legal consequences of loss of mental capacity can be chaotic, distressing and extremely expensive for the individuals concerned and their families. Our experienced team can help you with;
- all applications to the Court, including for the appointment of Deputies
- the execution of statutory Wills. Click here to read more about statutory wills
- obtaining orders for the sale of property
- advising and assisting Deputies in connection with their duties and responsibilities – including the preparation of annual accounts and income tax returns.
We can also apply for one of our team to be appointed as a Deputy for your loved one.
Our Solicitors also advise clients in Court of Protection cases locally throughout Wiltshire, Dorset, Hampshire and Somerset and further afield across England and Wales
The Court of Protection and the Office of the Public Guardian
If there is no Lasting or Enduring Power of Attorney in place and someone loses the ability to manage their financial affairs, it is likely that the Court of Protection will have to be involved. Those appointed by the Court to manage another’s financial affairs are called Deputies.
The Court of Protection is a special Court based in North London which exists to make decisions for people who can no longer manage their financial affairs, including making decisions as to who should be appointed to manage their affairs for them.
The Office of the Public Guardian (or OPG) is a wing of the CoP and exists to supervise people who are appointed to manage other people’s financial affairs.
What is the role of the Court of Protection?
The CoP exists to protect the affairs of people who are vulnerable. The Court deals with applications relating to any individual who lacks the mental capacity to manage their own affairs, be they property and financial affairs or health and welfare matters.
The Court makes decisions for people who are unable to do so for themselves and they can appoint someone (called a deputy) to act for people who are unable to make their own decisions. These decisions are may be for issues involving the person’s property, financial affairs, health and personal welfare, such as where they should live. You might need to apply for the appointment of a deputy for someone, or to make a Will on their behalf.
When does the Court of Protection get need to get involved?
There are many reasons why an individual may lose mental capacity such as resulting from an accident, mental deterioration due to Alzheimer’s disease or another form of dementia or a birth condition such as cerebral palsy, for example. Jointly, the CoP and the OPG protect the interests of such vulnerable people and ensure that their affairs are correctly managed so that they are not taken advantage of by another party.
One of the most common situations we see is where an elderly widowed parent needs to move into care. They may be suffering from Alzheimers or dementia and are no longer able to live in their home, so the house needs to be sold. They are no longer able to deal with the sale process or to understand the implications of it or of investing the money once the sale completes. Someone therefore needs to be appointed by the Court to deal with these things.
Applications to the Court on behalf of people who have suffered a brain injury are also common.
A Statutory Will is also often needed to prevent the laws of intestacy determining the distribution of the person’s estate when they pass away; or when a person’s situation changes to such an extent that their former Will becomes unsuitable.
In situations where a Power of Attorney is not in place prior to the individual losing mental capacity or their Attorney is no longer able to act for them, the Court of Protection will appoint a Deputy to manage the individual’s affairs. The OPG will monitor their conduct on an annual basis, which involves completing a declaration which demonstrates how they have spent the money of the individual lacking capacity and what decisions they have taken on their behalf
Increase in Court of Protection applications
According to the Senior Judge of the Court of Protection, applications to the Court have risen by 50% in the 10 years to 2018 .
Over that period the annual number of applications has gone up from 10,000 to 15,000. Interestingly, a full 97% related to financial issues rather than welfare.
Court of Protection delays – July 2022 update – The Government, has confirmed that although the OPG sets a target of 40 days, applications to register a lasting power of attorney are currently taking “an average time of 81.8 days to complete”
2018/19 sees big increase in applications to the Court of Protection to censure or remove attorneys
According to figures released in October 2019, the Office of the Public Guardian made 721 applications to the Court of Protection to either replace or at least censure attorneys in 2018/19 – an annual increase of 55%. In fact the number of legal actions taken against attorneys has more than doubled in the last 24 months.
This huge number of misconduct allegations is really concerning – two of the main reasons for the applications were simply not acting in the best interests of the vulnerable client and making inappropriate gifts.
It is been suggested that one of the main reasons for this second increase is that many lasting powers of attorney are created these days without the benefit of specialist legal advice.
Our advice – don’t take chances. Make sure that an experienced solicitor drafts your LPA
Court of Protection Deputyship explained
A deputy is someone appointed by the CoP to make decisions for someone who is unable to do so on their own – to oversee and manage the affairs of an individual who lacks the capacity.
There are two types of deputyship:
- property and financial affairs
- health and welfare matters.
Of the two, the property and affairs deputyship is the most common.You can be appointed for one or other role, or for both
If you wish to become a Deputy for somebody, you must apply to the Court of Protection. One of the major differences between an Attorney (i.e. someone appointed under an Enduring or Lasting Power of Attorney) and a Deputy is that the former is appointed by the individual concerned and the latter by the Court.
A Deputy must always be aware that what they do can have a big impact on the other person’s life and that they are responsible for only making decisions which are in the best interests of the individual who lacks capacity. A Deputy can only make decisions which they are authorised to make and must make those decisions carefully after full consideration.
Who qualifies as a deputy?
They must be over 18 and responsible. A deputy can be a relative or a close friend. Many people do not feel able to take on what is a very responsible role and so can ask a professional person such as a solicitor to act as deputy. Ultimately the decision as to whether the deputy is acceptable or not lies with the court.
What happens if a deputy doesn’t do a good job?
Every deputy is monitored by the OPG on an annual basis to ensure that they are fulfilling their role correctly
The Office of the Public Guardian can investigate a deputy if they believe that deputy is not fulfilling their duties properly. If any deputy makes decisions as a deputy that they are not allowed to make, they might be removed from that position.
Does a Deputy have any other responsibilities?
A deputy is usually asked to submit an annual account – like a receipts and payments account – showing how they have dealt with the money under their management. We can complete this for a deputy if required. It is important that anyone appointed as deputy keep receipts, bank statements and other papers relating to money received and money paid to enable these accounts to be completed without difficulty.
We recommend that any deputy keeps careful records of any decisions they make and the role, such as carrying out major investments, or changing the care home in which someone lives. They should note down how they reached the decision, what things they thought about and who they spoke to about it, such as a financial advisor, social worker or doctor. We also recommend that any deputy keeps all correspondence with third parties such as financial advisors and accountant.
Can a solicitor be appointed as a deputy?
There are certain key advantages to employing a professional such as a solicitor to act on the individual’s behalf:
- There may not be anybody willing or able to carry out the role
- They have been injured in an accident and making or have made a claim for compensation, which can often run to hundreds of thousands, even millions of pounds
- A professional is accustomed and experienced in handling large sums of money which eliminates worry for the family
- The family can concentrate on other things, such as caring for the individual who is making the claim
- If professional care is in place, it is a challenge to manage their finances in addition to the cost of therapies, disability equipment and other living expenses, for example
- A professional will consult with the family to discuss their financial needs and how they can best assist
- A professional is able to make informed decisions rather than emotive ones.
Many people are worried about using a professional deputy because they fear a loss of control, however an experienced professional is there to make life easier, not harder. Contact our team of specialist solicitors today for expert legal advice and guidance.
How is a Deputy appointed?
An application has to be made to the Court of Protection.
First of all a medical opinion has to be obtained from a GP or psychiatrist to confirm that the person involved is no longer able to manage their own affairs. The Court have a standard form for the medical practitioner to complete and we can arrange for this to be sent to them with the Court’s notes which must be followed when it is completed. The application can only be made if the doctor is of the view that the person concerned is unable to manage their own affairs and so this step must be taken first. The opinion is sent to Court with the other application papers.
A detailed form has to be completed giving information about the person who is unable to manage their affairs – their age, circumstances, details of all their investments, income and things they own, their liabilities, and living costs. The Court may well not meet the person concerned and so this form is detailed to ensure that they have as much information as possible to help them make a decision. It is important that time is taken to gather this information together carefully. It is not a job which can be rushed.
An application form has to be completed telling the Court what they are needed to decide.
Finally there is a form for the potential deputy to complete. As being a deputy is a responsible role involving the management of someone else’s money, this asks a lot of questions to establish that the deputy is an appropriate person to act.
What happens when the Court get the application?
The Court will acknowledge it and will ask for notice of it to be served on relatives of the person concerned. This is so that they know what is happening and are able to tell the Court if they think the person applying to the Court is not suitable.
Once confirmation is given to the Court that this step has been taken, the Court will set a date for the hearing. It is unusual for anyone to be asked to attend this although it depends on the circumstances of each particular matter. The Court are often able to make a decision on the strength of the application papers – this is why they are so detailed.
If the Court are satisfied that the person applying to become a deputy is suitable, they will issue an Order appointing them. The Order will set out what decisions the Deputy may make on behalf of the person they have been appointed to assist. It is important that you take care only to do those things you are given authority to do. If you need to do something that is not covered by the Order – such as make large gifts for inheritance tax planning reasons, or make a new Will for the person – you must make a specific application to the Court seeking their authority to do this.
The Court will ask that you take out insurance before you do anything in your new role. This is to ensure that if anything does go wrong, the assets you are looking after are protected. The Court will set the level of the insurance and you will be able to easily arrange this using an arrangement the Court have in place with a leading insurer.
How long does it take?
This depends on many factors, including the Court’s work load at the time and the degree of complexity of the particular matter – if there are any disputes about who should be appointed, or the person involved has complex finances, the application will take longer. You should expect the procedure to take around 3 months as a minimum from the time the medical report is available.
What if an Order is needed urgently?
If you need an Order urgently then it is possible to ask the Court to place the application into their fast track system. It is possible to move an application over to the fast track system at any time during the course of the procedure if facts arise which make this desirable. An example of the need to fast track an application would be if for example the sale of the person’s property was at risk because the buyer needed to act quickly. Having the property on the market for sale is not in itself a reason to use the fast track system.
With Court of Protection work, it is always better to plan ahead and anticipate things which may need to be done, making applications in plenty of time, rather than leaving it to the last minute when the Order is desperately needed.
If someone lacks mental capacity, can they still make a Will?
You do not have authority as their deputy to make a will for them.
Most people don’t realise that under certain conditions, a Will can be written for someone who does not have the mental capacity do make one themselves. In this situation, a Statutory Will can be created when there are reasonable grounds, and it is ordered by the Court of Protection.
When a person has lost the capacity to make a will and it is considered necessary to make a will, an application needs to be made asking the court of protection to authorise the execution of that will. An attorney or a deputy cannot execute a will without the court of protection’s approval.
An application to the Court of Protection will need to be made – for what is known as a Statutory Will to be made on behalf of the person without capacity. This is a detailed and complex procedure. We have a lot of experience and can help.
What does the Court of Protection consider when making a Statutory Will?
The Court is then faced with the difficult task of writing a Will that would be the same as the person would write themselves if they had the required mental capacity. It takes into account the person’s attitudes and known opinions on the most pertinent factors and people in their lives. The Court makes choices based on what the person would have wanted, and is not particularly concerned about keeping the person’s family happy. For example, if they think the family would not have been beneficiaries, family members will not be taken into account when forming the Will.
Can a deputyship order end?
Yes – the order will automatically terminate if the person who is lost capacity dies – and can also be terminated if they regain capacity and is once again able to handle their own affairs
