The Court of Protection

The Court of Protection

If a person has lost capacity to manage his or her own affairs and has not made a Power of Attorney an application to the Court of Protection will be necessary.

What steps are required?

The application for a Deputyship appointment requires various forms to be completed and submitted to the court including an assessment of the individual’s capacity by a doctor. The proposed Deputy has to make a declaration of their personal circumstances and confirm that they will observe the principles in the Mental Capacity Act which govern a Deputy’s actions. Details of the assets of the individual in question must also be supplied.

As part of the application process anyone who the proposed Deputy feels should be heard in connection with the application has to be served with notice of the application and anyone who may have an interest in the proceedings themselves. All applications to the Court of Protection incur a fee and if there are solicitors’ involved fixed costs are set down by the court for an application for a general order to deal with that person’s affairs.

In addition there is an annual supervision fee depending on the nature of the order that is made and all of these fees and costs are payable from the incapacitated person’s assets.

An insurance policy is required to protect the incapacitated person’s estate from being administered incorrectly by the Deputy. The insurance premium is also payable from the assets.

Does a relative have to act as a Deputy?

It is not a requirement that a relative acts in this capacity but it is usual because they are often the person left to deal with the affairs but in their absence it is also common for a Local Authority Social Services Department to make an application if there are no relatives prepared to take up this role.

What are the Deputy’s powers?

When the order is eventually made the Deputy has powers to manage the affairs of the incapacitated person which means they can then advise banks and building societies etc that they now have control of these assets and deal with them as required but always in the best interest of the person in question. The order will also provide the Deputy with power to sell a property. Any powers that are required which are not included in the order will result in a further application having to be made which will incur an additional application fee and more costs.

The order that is generally obtained at the first instance will not deal with the interest that an incapacitated person has in a jointly owned property and a separate application will have to be made to the Court of Protection for the co-owner who has capacity, to appoint a second person to act with them if there is ever any need to sell the property in question. It is always, therefore, advisable to seek this additional order if that is ever contemplated.

If the incapacitated person has not made a Will or if there are potential tax advantages of them doing so it is always open for a Deputy to make an application to the court for a “Statutory Will” to be made which to all intents and purposes would be drafted and sealed by the court as if made by the incapacitated person themselves.

If the incapacitated person or the Deputy making the application are in receipt of certain benefits the application fee is waived or reduced in part.

Why use Berry Smith to assist with the Court of Protection application?

We are able to advise on the detailed procedures required by the Court of Protection and specifically:-

• Draft the various application forms required.
• Advise on the requirements if a person who has lost capacity who jointly owns property with another person of the specific additional application that has to be made to be able to deal with that property as an ordinary Deputyship Order does not cover these matters including drafting the application.
• Advising and assisting with an application to make a Will via the Court of Protection for a person who has lost the capacity to do so themselves.
• Members of this firm have acted as a Deputy in the past for clients and are fully versed with the procedures and requirements demanded by the Court of Protection.