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The Court Of Protection and the appointment of a deputy for an elderly client - some FAQs

Q: What is the Court of Protection?

The Court of Protection is an institution based in London. It helps to look after individuals who lack the capacity to make decisions for themselves.

Q: I have also heard the Office of The Public Guardian mentioned – is it different to the Court?

The Court of Protection and Office of the Public Guardian (OPG) are essentially the same institution and their names are often used interchangeably. The simplest explanation (for these purposes) is that the Court makes all the decisions and the OPG handles the ongoing administration. The two bodies work together, but with separate defined roles.

Q: When would the Court appoint a Deputy?

A Deputy is appointed when an individual’s affairs need to be looked after because that individual is not capable of making decisions for themselves.

Every individual has the right to appoint someone of their choice in advance to look after their affairs on their behalf, should they at a later stage lack the capacity to manage their affairs themselves. This is achieved by making a Lasting Power of Attorney (LPA). If someone has not made an LPA and they lose capacity then there needs to be an application to the Court of Protection asking the Court to appoint a Deputy to act in the same way for that individual as an attorney would.

Q: How would someone lose capacity?

Someone loses their mental capacity in a variety of ways. The most common of these is when an elderly client is suffering from one of the various forms of dementia in a moderate to advanced stage. Other common ways in which someone lacks capacity include clients who have suffered from acquired brain injuries, clients who suffer from severe post traumatic stress disorder and clients who suffer from severe forms of cerebral palsy.

In order for a Deputy to be appointed, a client must lack the capacity to appoint an attorney for themselves under an LPA, and must also lack the capacity to manage either their financial property and affairs in general and/or their personal welfare decisions.

For the purposes of this article I will only concentrate on when a person lacks the capacity to manage their financial affairs.

Q: Who decides if someone lacks capacity?

Ultimately, it is the Court who decide. Initially a solicitor being asked to, say, prepare an LPA for a client may have suspicions that the client doesn’t have capacity and will seek medical evidence from a professional such as a GP or consultant. If the medical evidence states that person lacks capacity the Court will find this most persuasive for the appointment of a Deputy.

Q: If someone lacks capacity does that mean they can’t make ANY decisions themselves?

No, not necessarily. The legal tests for capacity are very much ‘issue specific’. As an example; someone who lacks the capacity to manage their financial affairs in general may have the capacity to, for example, make a Will.

More commonly, someone may have the capacity (usually only just) to make an LPA appointing an attorney, but at the same time lack the capacity to manage their property and affairs in general.

Q: What does a Deputy do?

A Property and Affairs Deputy looks after someone’s financial affairs. This includes paying bills and taking over bank accounts. A Deputy can do all the things an attorney can do. At the high end of the scale, a Deputy can sell that person’s house (with the Court’s permission) on their behalf if it is in that person’s best interests to do so.

A Deputy has to account to the Court at all times. Any major decision (such as selling someone’s property – as above) needs the Court’s permission. Every year the Deputy has to provide a ‘Deputyship Report’ to the Court. This gives the Court information on decisions that the Deputy has made on that person’s behalf and also provides summary accounts for the Court to approve.

Q: Who can be a Deputy?

In theory, anyone over 18 can be someone’s Deputy. However, the Court want to ensure that the person being appointed is suitable. Therefore, it is not advantageous (but not necessarily fatal to the application) for a proposed Deputy to have been, say, previously declared bankrupt or found guilty of a criminal offence.

Usually the Deputy will have a connection to the person who lacks capacity. It is usually a family member or close friend who is appointed as Deputy, or a professional such as a solicitor or accountant. It is unlikely that the Court would appoint a Deputy for someone who was a stranger to the person in question and was not a professional Deputy.

Q: I have an elderly relative in a care home. Social Services have asked me if that relative has made a Power of Attorney. I do not think they have. What do I do?

It is quite a difficult situation. The first thing to do is establish if the relative has made an Enduring Power of Attorney (EPA) or a Lasting Power of Attorney (LPA). This isn’t easy to do at times but they may have a copy of the EPA or LPA with their personal effects or at least have details of who their solicitor had been previously. The solicitor may be helpful but there can be difficulties in relation to client confidentiality.

If it is not thought that the relative has made an EPA or LPA then it needs to be established whether that person has the capacity to make an LPA (it is not possible to create a new EPA). A solicitor will normally be able to advise on this – either by seeing the relative in the care home or, if anecdotally it sounds the relative lacks capacity, by bypassing a visit and going straight to asking the opinion of a medical professional. If they have the capacity to make an LPA then that is the route to go down. If not then an application needs to be made to the Court to appoint a Deputy.

Q: What is the procedure to appoint a Deputy?

First of all medical evidence has to be obtained. The Court will not accept jurisdiction without medical evidence in the required form. The required evidence is submitted to the Court using its standard form - the COP3.

A medical practitioner completes the COP3. It is usually completed by the person’s GP or by a psychiatrist. Sometimes a psychologist will complete the form where appropriate. In certain cases it may also be appropriate for a registered occupational therapist or similar professional to complete the form.

There are then other forms to complete. These give details to the Court about the type of order being asked for, details about the person applying to be appointed as Deputy and, finally (and most importantly), details about the person who lacks capacity.

The application (comprising of four different forms) is then sent to the Court of Protection and the Court will make an order appointing the Deputy.

Q: How long does it take and how much does it cost? Who pays for it?

For a breakdown of the costs of a professional deputy please click here

Once the application has been sent to the Court it usually takes 2 or 3 months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.

The medical practitioner sometimes charges a fee for completing the medical evidence. Some practitioners do not charge for their services. It is entirely down to luck whether a fee is charged or not. When the practitioner does charge, their fee can range from £50 to £300.

The Court charges an application fee of £400. There is also an appointment of Deputy fee of £125.

The Court then charge an annual supervision fee which ranges from £0 to £800. The most likely supervision fee for a Deputy looking after an elderly relative is £175 per annum.

The Deputy has to also take out a ‘security bond’ to cover their actions as Deputy and this too is payable annually. The bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the bond. The bond levels seem to have increased since October 2007. It is likely that the bond will be at least £200.

Finally, a solicitor will also charge a fee for making the application to appoint the Deputy. There is a lot of work involved and the Court will state in the Order they make that the solicitor is entitled to charge a fixed fee of £825 plus VAT. This would only really apply, however, in the simplest of cases. A solicitor is entitled to charge more than this, but any bill they raise needs to be assessed and approved by a costs Judge at the Supreme Court Costs Office (‘SCCO’). This delays payment for the solicitor and it may be that they decide to charge the fixed fee only!

All fees are payable from the assets of the person who lacks capacity. Otherwise, if they had to pay for it themselves, clearly no-one would ever want to be appointed as someone’s Deputy!. The solicitor will usually agree to postpone their fee (I always do) until the Deputy has access to the relative’s bank accounts. The Court fees can also usually be postponed. One fee that cannot be postponed is the security bond, and the proposed Deputy usually has to pay this from his own assets. The Deputy can legitimately recover any costs incurred in making the application from the relative’s estate when they are able, however.

For information on the costs of a professional deputy please click here

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Liz Hall

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