Court of Protection Solicitors

The Court of Protection is the legal body responsible for making decisions on behalf of individuals who lack the mental capacity to make their own choices.

If you wish to manage the affairs of a loved one or friend who has lost the ability to oversee their own affairs due to an injury or illness, such as a stroke or dementia, and they do not have an appropriate Lasting Power of Attorney, you will need to apply to the Court of Protection to become their Deputy.

A Deputy Order is a legal document issued by the Court of Protection which appoints a person to act on behalf of an individual regarding their property and financial affairs or a specific personal welfare issue.

Having a Lasting Power of Attorney in place is the best way to prepare for the future and have plans in place should you lose mental capacity.  By preparing the Property & Finances and Health & Welfare Lasting Powers of Attorney, you are able to choose who will act as your Attorneys.  This gives you the opportunity to choose people you trust who you feel will make the right decisions on your behalf, while understanding their responsibilities in this important role.  You can discuss your wishes with them in advance and be confident that they will follow them whenever they can.

In contrast, if no Lasting Power of Attorney is in place and a Deputy Order is required, the Court of Protection decides who should be appointed as your Deputy to oversee your affairs.  This may not be the person you would have chosen, and the application process takes many months which can lead to additional hardship, delays and costs for your loved ones at an already worrying time.

A Property & Financial Affairs Deputy Order enables the Deputy to:

• Manage bank accounts and investments
• Pay bills and handle financial transactions
• Deal with tax affairs and benefits
• Make investment decisions to safeguard the person’s finances

A Property & Financial Affairs Deputy may also handle legal affairs on behalf of the individual, including:

• Initiating or defending legal actions on their behalf
• Managing ongoing legal obligations and contracts
• Handling insurance claims and proceedings

A Property & Financial Affairs Deputy can work with agencies that provide support, educational and/or vocational services to the individual.

When a Property & Financial Affairs Deputy Order has been made by the Court of Protection, the Office of the Public Guardian steps in to supervise the Deputy.  Deputies are required to:

• act in the best interests of the individual and avoid conflicts of interest
• keep detailed records and receipts
• submit annual reports to the Office of the Public Guardian

The Office of the Public Guardian will ensure that the Deputy carries out their duties responsibly and in the best interests of the individual they represent.  The level of supervision will be determined by various factors, including the Deputy’s relationship with the individual, the intricacies involved with managing their affairs and any previous experience the Deputy may have had in the role.

The Office of the Public Guardian will periodically review the Deputyship to ensure that the Deputy continues to act in the best interests of the individual. If the person regains capacity or if there are concerns about the Deputy’s conduct, the Court may terminate the Deputyship.

Any individual over the age of 18 with the appropriate skills and experience can apply to become a Deputy. This could be a family member, close friend, or a professional such as a Solicitor.  The Court carefully considers each application to ensure the appointed Deputy is capable and trustworthy.

In certain situations it may be possible for two Deputies to be appointed and we can discuss this with you if you feel it appropriate.

Applying for a Deputy Order can be a complex legal process with extensive forms and supporting documents required by the Court of Protection, including an Assessment of Capacity form that the individual’s doctor or social worker will complete.

It can take up to twelve months for a Property and Financial Affairs Deputy Order to be made by the Court.  In certain situations an Interim Order can be applied for at the same time as the main Order to enable (for example) the Deputy to pay nursing home fees while the Court considers the main application.

We can support you to ensure that everything is completed accurately, thereby reducing the possibility of any directions being issued by the Court which will cause delays.

While it is possible to apply for a Deputy Order independently, the process can be complicated and time-consuming and any incorrect or incomplete documentation will lead to a delay in the Court dealing with your application.  Our expert Court of Protection team are here to support you in your application, offering guidance with compassion and pragmatic advice.

The Court of Protection charges £408 to consider the application and legal fees will also be incurred.  Your legal team will have regard to the Fixed Costs Practice Direction and will discuss this with you if you instruct us.

The Court usually asks a Property & Financial Affairs Deputy to obtain a security bond before it issues the Deputy Order.  A security bond is a type of insurance designed to protect the individual’s finances and the annual premium will be calculated by reference to the value of the individual’s assets and how much of their estate is in the Deputy’s control.

When you are appointed the individual’s Deputy, you will need to pay a one-off Deputy Assessment fee which is currently £100.  A general supervision fee, currently £320, will be payable to the Office of the Public Guardian annually.

A full or partial exemption may apply to some of the fees but certain conditions need to be met and we will be able to advise you about this.  The exemption does not apply to legal fees.

A Deputyship can be terminated or revoked by the Court of Protection under certain circumstances, for example, if the Deputy is found to be acting improperly or if the individual regains capacity.

A Statutory Will is a Will created on behalf of an individual who lacks the mental capacity to make or amend their own Will. An application has to be made to the Court of Protection who will aim to create a Will that reflects the individual’s likely wishes, values, and beliefs based on any available evidence, past statements, and the recommendations of experts.  The Court usually involves family members and potential beneficiaries during the decision-making process and allows them to submit evidence and opinions to assist the Court in making a fair and informed decision.  Should you be managing the affairs of a loved one and believe that a Statutory Will is required, we can discuss the options with you.