Court of Protection
If your loved one lacks the capacity to manage their property and finance (and make a Power of Attorney) then there is nobody legally authorised to access bank accounts, liaise with utility companies or sell property.
To manage that individual’s finances you will need to make an application on designated forms to the Court of Protection which is the branch of the Court that deals with the affairs of people who lack the mental capacity to make decisions for themselves about their personal property and financial affairs or health and welfare.
We have extensive experience of making Court of Protections and of acting as Deputy for numerous individuals. We can ensure all the procedural hurdles are dealt with properly and promptly and your responsibilities to the Court met.
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How long does it take to become a Deputy?
It takes approximately 3-5 months after submitting the application for the Court to release the Order appointing a Deputy enabling you to access accounts.
What are the costs?
Aside from solicitor fees, there is an application fee of £385 payable to the Court, a one-off £100 Deputy Assessment fee, an annual supervision fee of £320 to the Office of the Public Guardian (an organisation that supervises Deputies) although there may be a total exemption from paying or even a partial reduction of the fees depending on income and capital.
Because a Deputy is in charge of a person’s assets, the Court insists on the taking out of an insurance policy, so an annual premium is payable each year.
These fees are normally paid from the individual’s funds or can be paid by you and then refunded from the person’s funds at a later date.
What can I not do as Deputy?
You cannot make or change a person’s Will. If it is appropriate to change someone’s Will you must apply to the Court of Protection who will approve it.
There are specific rules about gifts. Depending on the size and the occasion you may need to apply to the Court of Protection to approve any gift.
A Property and Financial Affairs Deputy has no authority to make decisions about that person’s health and welfare. Decisions such as where they live and what treatment they have is a separate domain which may be dealt with by a best interest meeting. A Property & Financial Affairs Deputy may be entitled to participate in any best interests meeting if financial issues ought to be considered.
Disputed Applications and Deputy complaints
Unfortunately, disputes about the appointment of Attorneys or Deputies, or the actions of Attorneys or Deputies, can sometimes arise. These can be difficult and daunting to deal with.
Anyone who is aware of a possible misuse of powers by a Deputy can notify the Office of the Public Guardian (OPG) and they will carry out an investigation. The matter may be referred to the Court of Protection for consideration who can make an order to suspend, discharge or replace a Deputy.
When these disputes come before the Court of Protection, specialist advice is required to manage the complexities of the Court’s procedure and practice. Our experience enables parties bringing disputes before the Court to present them reasonably and effectively. We will also try to assist in a settlement without the need for a hearing, if at all possible.
Please click a question below to expand:
Where someone lacks capacity to make a Will, known as testamentary capacity, then one can only be executed if it is approved by the Court of Protection - and this is called a Statutory Will. If a Deputy is not already in place, an application will need to be made to the Court of Protection to appoint one before embarking on the application.
A Deputy is a person appointed by the Court to manage a person’s property and affairs, in the event the person lacks capacity to do this for themselves.
The Mental Capacity Act 2005 stipulates that any decision taken on behalf of a person who lacks capacity must be done in their best interests, and this includes executing a Will. When the Court is considering the execution of a Will, they must consider whether the content meets the following:
- Their past and present wishes and feelings, and in particular, any relevant written statement made by them when they had capacity
- Their beliefs and values that would likely influence their decision
Some of the reasons for creating or changing a Will are:
- the person has come into a significant amount of money, for example a personal injury award
- inheritance tax planning purposes
- a person’s circumstances have changed, for example an individual would have wanted to include someone who’s been caring for them for years
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