When someone loses the mental capacity to manage their own affairs, the Court of Protection plays an essential and influential role in safeguarding their best interests.
If you still have the mental capacity to appoint others to assist you with your property and financial affairs, and your health and welfare, you can appoint someone under Lasting Power of Attorney (LPA). However, if you no longer have such capacity, and no Enduring Power of Attorney or LPA is in place, the Court of Protection is the only avenue to appoint someone as a deputy.
You certainly wouldn’t be the first to ask the questions, “How does the Court of Protection work?” and “What is the role of a deputy?”
At George Ide LLP, we are highly experienced in Court of Protection and deputyship matters and have experience in providing professional, tailored advice to clients facing the most complex of situations. However, we feel it’s prudent to help you understand how the Court works and the role of court-appointed deputies is crucial should you be faced with these challenging circumstances.
What is the Court of Protection?
The Court of Protection is a specialist court designed to make decisions about the property, finances, and personal welfare of individuals who lack the mental capacity to make these decisions themselves.
This court, a division of HM Courts & Tribunal Service, serves as a crucial safety net for vulnerable people, ensuring their best interests are always protected.
Understanding Mental Capacity
Before exploring the Court’s role, it’s important to understand that:
- The law presumes everyone has mental capacity unless proven otherwise
- A qualified practitioner must deliver an assessment of capacity (form COP3)
- Loss of capacity can occur through various circumstances, including dementia, traumatic brain injury, or severe learning disabilities
- The assessment focuses on the person’s ability to make specific decisions for themselves
When Does the Court of Protection Get Involved?
The Court typically becomes involved when someone loses mental capacity without having a Lasting Power of Attorney in place.
The Court will decide whether the person lacks capacity and what types of decisions an appointed deputy will need to make.
For example, if there are disputes about an existing Power of Attorney, if complex decisions need to be made about someone’s welfare or property, or if there are concerns about the actions of someone managing another person’s affairs, then the Court of Protection will need to step in.
What is a Court of Protection Deputy?
A deputy is required when there is an evident loss of mental capacity that deprives someone of dealing with their own personal, financial, and health-related affairs. If personal injury compensation is awarded following an accident, and the victim cannot make informed decisions, deputyship can be a particularly helpful safeguard.
Types of Deputies
The Court can appoint two types of deputies:
- Property and Financial Affairs Deputies can make decisions about financial matters, such as managing bank accounts, dealing with a person’s property or home, buying services, paying bills, handling tax matters, and overseeing a person’s business affairs and investments.
- Personal Welfare Deputies can make decisions about a person’s health and welfare, including deciding on where they live and the day-to-day care and medical treatment they receive.
Deputy Responsibilities and Supervision
The Court of Protection will mandate that the proposed deputy or deputies complete a COP4 declaration to ensure they fully understand their roles and responsibilities and are financially stable enough to do so.
Deputies that have been appointed by the Court must:
- Act in the person’s best interests at all times
- Follow the Mental Capacity Act 2005 and its Code of Practice
- Keep detailed records of decisions and transactions
- Submit annual reports to the Office of the Public Guardian (OPG)
- Maintain appropriate insurance through a security bond
- Seek court permission for significant decisions
Contrary to popular belief, deputies can only perform responsibilities set out by the Court of Protection. They do not have the autonomy to exercise complete control over a person’s entire affairs, estate, and assets.
Furthermore, a deputy is not the same as a person’s ‘next of kin,’ which has no legal status pertaining to financial decisions.
Key Considerations for Deputies
It’s important to remember that the Office of the Public Guardian (OPG) always supervises deputies. Court-appointed deputies must check in every year with the OPG and be transparent about what decisions they have made and account for any money spent in the person’s best interests. They may only perform duties that the Court has specified, but they can instruct professional accountants or solicitors to prepare annual reports.
The Court will stipulate that all property and financial deputies arrange security bonds with approved, regulated, and accredited insurers. Should a deputy misappropriate funds or make inappropriate decisions, security bonds act as a form of insurance. This must be set up before their appointment becomes legally binding, and deputies must also pay premiums from the funds of a person lacking mental capacity.
Deputies must be at least 18 years of age, but they can be either a family member, friend, or a professional third party such as a solicitor. More complex cases, such as those involving large sums of money, the Court may stipulate that a professional deputy be appointed.
How to Apply for Deputyship with the Court of Protection
Becoming a deputy involves several key steps:
- Completing detailed application forms
- Obtaining medical evidence of incapacity
- Notifying relevant family members
- Arranging security bonds for financial deputies
- Attending court hearings if required
The process typically takes anywhere from 3 to 9 months, though urgent applications can be expedited when necessary. The Court can grant interim orders to access funds to pay imminent debts, if necessary.
Deputyships may have specific time limits, which the Court of Protection will stipulate. If, for example, the person was able to regain mental capacity, an application to discharge a deputy could be made to the Court.
The Importance of Professional Support
Managing a deputyship can be complex, particularly when large estates are involved, or when family conflicts exist and complex investment decisions must be made.
In such cases, it’s recommended to seek professional Court of Protection services from reputable solicitors, who can provide sympathetic, impartial, and strategic advice on personal and financial affairs. George Ide LLP’s experienced Court of Protection team can:
- Guide you through the deputy application process
- Provide ongoing support and advice to deputies
- Handle complex financial management
- Assist with annual reporting requirements
- Manage property matters
- Liaise with the Court of Protection
- Apply for additional powers when needed
- Advise on statutory Wills if necessary
Working closely with our internal Investment department as well as our personal injury solicitors where necessary, we are best positioned to take a comprehensive overview of your circumstances.
Professional Court of Protection Solicitors
Whether you need guidance on becoming a deputy or require support managing an existing deputyship, our specialist team at George Ide LLP can help. Contact us today for expert advice on any issues relating to the Court of Protection and deputyship matters.
Disclaimer: This guide provides general information about the Court of Protection and deputyship. It should not be considered legal advice. Every situation is unique, and we recommend seeking professional legal advice for your specific circumstances.
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For general enquiries or to discuss more specific needs in personal or commercial law please get in touch with a friendly member of our team today.
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