What is the Court of Protection?
It is a Court created under the Mental Capacity Act 2005 and has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. If a person is deemed to lack capacity, then the Court can decide what actions to take in the persons’ best interests, and in particular has the power to appoint deputies who, once appointed, can then make decisions on behalf of the person who is deemed to lack capacity.
What should I do if I believe a relative now lacks capacity to look after their Finances?
This situation may well necessitate an application to the Court of Protection for a Financial Deputy to be appointed, but this does of course depend on the actual circumstances. If your relative still has mental capacity, then, simply put, he or she will continue to look after their own affairs. The assessment of capacity is a difficult process and if you have any doubt you should seek assistance of a solicitor who can give you guidance and possibly obtain a medical report. It could be the case that your relative does indeed have capacity but is making what you consider to be unwise decisions but this would not justify an application to the Court.
Further, if your relative does not have capacity, you must then make enquiries to see if he or she had previously prepared an Enduring Power of Attorney or a Lasting Power of Attorney. If they have, then you would approach the Attorney and request that they provide the help needed, under the terms of their appointment. You should only consider approaching the Court of Protection if you have serious concerns about the conduct of the Attorney (i.e. the decisions being made are not in the best interests of the person now lacking capacity).
If you are confident that your relative has lost capacity and there is not a Lasting Power of Attorney in existence, then an application can be made to the Court of Protection.
How do I make an application to the Court of Protection?
Depending upon the application that you want to make, there are a number of forms to be completed and a Court fee to be paid (unless a fee exemption can be claimed). If the application relates to property or personal welfare, a COP3 Form (which is an assessment of capacity Form), will have to be completed by an appropriately qualified third party (for example, a G.P, Specialist, Psychiatrist, Psychologist or Social Worker etc.) and this usually attracts a fee. Both the property and personal welfare applications include the completion and submission of 4 separate forms. This is a complicated area of law, so if in doubt, we strongly advise that you obtain specialist help before proceeding.
Who can apply to be a Deputy?
Anyone can apply to be a Deputy, but there is an order of preference that the Court of Protection takes into account when considering an application, or competing applications where more than one person is applying. Generally, first consideration will be given to the spouse or partner of the person lacking capacity, then any other relative who is interested in their welfare, then a friend will be considered, before consideration is given to a professional person (such as a solicitor or an accountant), a Local Authority or a Panel Deputy (this is usually a last resort). The application papers require full details to be provided of the person’s family circumstances and these will be considered during the application process. Close relatives can be contacted by the Court for their input into the process.
The Court must take into account a number of factors designed to ensure that any application will promote the best interests of the person lacking capacity, and will give particular consideration to the Applicant’s relationship to the person, the reason for the application and the benefit to the person lacking capacity of any proposed order.
How long does an application take?
As the Court of Protection is being asked to make a decision or decisions on behalf of a person who lacks capacity, the application will be carefully examined to ensure that the decision is in the best interests of the person concerned. In addition, the completion of the application forms usually takes some time, particularly as most applications have to be supported by an Assessment of Capacity Form from a recognised third party. In our experience, an application for Financial Deputy to be appointed can take anywhere in the region of 6 months, which can and does cause problems as in the interim there is no person legally entitled to deal with the affairs of the person lacking capacity. This is why we at Kirkham Legal strongly advise all of our clients to prepare a Lasting Power of Attorney, as a properly prepared and registered Lasting Power of Attorney avoids the need of such a Court application, and therefore this difficult interim period.
What does a Deputy do?
This depends upon the order made by the Court.
If a personal welfare order is made it may cover deciding where a person is to live, what contact the person is to have with specified persons, giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care, or allowing a different person to take over responsibility for health care.
If the Court make a property and affairs order, this can include the control and management of a person’s property, the sale of (or other dealings with) property, the acquisition of property, the carrying on of a business or dissolving a partnership, the discharge of debts, the settlement of property, the execution of a will and even the conduct of legal proceedings.
As a Deputy all decisions you make must be in the best interests of the person lacking capacity and be of restrictive of their human and civil rights as possible.
Once Appointed, is a Deputy subject to any checks?
Yes the Deputy has to keep full records in respect of financial transactions, and has to complete annual reports to the Court.
In addition, it is a responsibility of the Office at the Public Guardian to supervise and support Court appointed Deputies, and there are 4 levels of supervision depending on degree or complexity, whether it is a disputed case, if a new lay Deputy needs support, whether the Deputy is a close relative and the value of the assets involved.
The Court also has the power to order reports and visits from the Public Guardian, a Court of Protection visitor, an employee or officer of the Local Authority or NHS body.
In addition, if any person has any concerns about a Deputy the OPG can be contacted and then investigate the actions of a Deputy (or indeed a registered Attorney under a Lasting Power of Attorney).