What is the Court of Protection?
The Court of Protection is a court created under the Mental Capacity Act 2005 with jurisdiction over property, financial affairs and the personal welfare of those who lack mental capacity. The Court of Protection has the authority to decide who does not have capacity to make decisions for themselves, decide how to act in that persons best interests as well as appoint Deputies to make decisions on behalf of others.
What is a Deputy?
A Deputy is someone who is appointed by the Court to make decisions on behalf of someone else who does not have mental capacity to make decisions for themselves. This can be in relation to their property and financial affairs, personal welfare, or both. The Court Order appointing a Deputy will set out clearly what decisions they are permitted to make.
A register of court appointed Deputies is maintained by the Office of the Public Guardian (OPG). The OPG is the administrative arm of the Court of Protection.
Who can apply?
Anyone over the age of 18 can apply to be a Deputy, but you must have adequate skills to make responsible financial decisions. For example you cannot be Property and Affairs Deputy if you have recently been bankrupt, or have an IVA (Individual Voluntary Agreement) or have outstanding Judgment debts.
How do I apply?
To apply for Deputyship, you must fill in the following forms and send them to the Court of Protection First Avenue House in London:
- An application form (COP1)
- An assessment on capacity (COP3)
- A Deputy declaration form (COP4)
- A COP 1A information form if applying for Deputyship on property and affairs
- A COP1B information form if applying for Deputyship of personal welfare
Note that the COP3 should be completed by a doctor or qualified mental capacity assessor
What are the fees?
There is a £365 application fee payable to ‘HM Courts and Tribunals Service’. A Property and Financial affairs deputyship application is a separate application to a Health and Welfare application for Deputyship. This means that there will be two court fees if two applications are made. These fees can be recovered from the person you wish to have Deputyship over once you are appointed by the Court.
If the Court decides a hearing is necessary to decide your deputyship, a hearing fee of £485 will be incurred. Most applications are heard ‘on the papers’ and a Court Hearing to appoint a Deputy is rare.
If you cannot afford to pay the fees, you can fill out a COP44A which can be obtained from https://www.gov.uk/government/collections/court-of-protection-forms. A Deputyship application will be rejected if it is not accompanied by the correct fees or a valid COP44A.
How long does it take?
Applications for property and finance usually take 4 to 6 months once the papers are submitted so long as the application is valid and there are no objections from anyone. Personal welfare applications will often take longer.
Does a Deputy have to keep records?
A Deputy has a duty by law to keep a record of the transactions and decisions made on the incapacitated person’s financial and property affairs. These are to be submitted to the OPG annually and will include:
- Investments made or withdrawn with the person’s finances
- The selling of assets
- Using the persons money to buy someone gifts
- Any significant decisions made in the yearly period
What is a Security Bond?
A security bond, also known as a surety bond, is a policy taken out by Deputies to protect the assets of the person’s affairs they are managing. This ensures the incapacitated person is protected from any mishandling of their funds or financial loss caused by a Deputy.
Do I need a solicitor?
As anyone over 18 can apply to become a Deputy, you do not necessarily need a solicitor. However a Solicitor with experience in dealing with complicated matters and significant sums of money or assets ensures that the legal duties surrounding Deputyship are fulfilled to its appropriate standard and can avoid any abuse of funds or power.
For more information about how our Court of Protection team can help you please contact them by email at email@example.com or visit their pages on our website.