Court of Protection
If someone lacks the mental ability to manage their affairs and they have not set up a power of attorney then it may be necessary to apply to the court of protection to have someone appointed as the deputy.
This will ensure that bills can be paid, benefits received and decisions made concerning how their money is spent and invested. On occasions, deputies can also be appointed to make decisions about someone’s personal welfare.
What is the Court of Protection?
If someone lacks the mental ability to manage their affairs and they have not set up a power of attorney then it may be necessary to apply to the court of protection to have someone appointed as the deputy to ensure that bills can be paid, benefits received and decisions made concerning how their money is spent and invested. On occasions, deputies can also be appointed to make decisions about someone’s personal welfare.
What can the Court make decisions about?
The Court can make decisions about:
- Whether to appoint a deputy to manage someone’s financial affairs if they lack capacity.
- Whether an action to be taken on someone else’s behalf is appropriate when they lack capacity.
- Disagreements that cannot be settled in any other way, such as by using an independent mental capacity advocate.
- Situations where a series of decisions rather than a single decision will need to be made for someone who lacks capacity.
- Challenges to an authorisation for the deprivation of liberty safeguards or disputes about their use.
- Removing an attorney under a lasting power of attorney, or removing a deputy.
- Someone’s healthcare or personal care, where there is no attorney or deputy to make it.
- Whether an advance decision or lasting power of attorney is valid, or about their meaning if there is a disagreement.
- Whether a deprivation of liberty safeguards authorisation has been granted lawfully, or about settling a dispute about the use of the safeguards against someone who lacks capacity.
Who can apply to the Court of Protection?
You can apply if you have a question that the Court has the authority to decide. You don’t need permission to do this if you are the person the Court is going to make a decision about, and you are over 18.
If you are applying on behalf of someone who lacks mental capacity, the following can apply:
- A legal guardian for someone who is under 18, and they could apply without permission.
- An attorney, deputy or anyone named in a court order relating to the matter could also apply, without needing permission.
- Family members, friends, legal professionals, healthcare trusts, clinical commissioning groups and local authorities can also apply, but they would need permission from the Court.
If someone brings a legal action to the Court of Protection on your behalf because you lack capacity, you should still be included in this.
You will need to get a solicitor, but if you do not have the capacity for this, the Court will consider how you should be involved and may appoint a litigation friend or representative for you.
A deputy is someone appointed by the Court of Protection to make decisions and manage affairs on behalf of someone who lacks capacity.
Woollcombe Yonge Solicitors act as court appointed deputies for many people who are unable to manage their finances for example, where our role is to ensure money is being properly managed.
It might be appropriate to appoint a professional as a deputy where family members do not wish to take on this role or there is no family available to do so.
There is normally a fee to apply to the Court. In certain circumstances, depending on how much money you have, you can be granted a fee exemption.
Our fees to assist in making an application will depend upon the amount of work involved, and whether you wish to continue to instruct us to assist in relation to the ongoing reporting duties to the court. We will always discuss any fees with you in advance.
The application process can be lengthy and complicated. We are experienced not only in making such actions but also acting as professional deputies and advising lay deputies on their duties.
We can also assist with one-off applications to the court, for example, to seek permission to sell a property, make gifts or to make what is known as a statutory Will on behalf of the person lacking mental capacity.
We can help you to work out which forms you will need and we can complete them for you to make sure that they can be processed by the Court of Protection without delay.