Quick read:
An application to the Court of Protection may need to be made if a person loses the ability to make decisions for themselves and does not have a Lasting or Enduring Power of Attorney in place. The Court will appoint a deputy to make decisions on behalf of that person.
Applications can also be made by attorneys to ask the Court to authorise them to make certain decisions such as changing a person’s will.
In depth:
What is the Court of Protection?
The Court of Protection makes decisions on behalf of someone that cannot make decisions for themselves.
They can authorise a person (known as a deputy) to make day to day decisions on behalf of that person. They also authorise attorneys to make certain decisions such as changing a person’s will.
How will it help?
The Court will appoint a deputy to make decisions about certain matters on behalf of the person that can longer make decisions for themselves. For example, the Court can authorise a deputy to make decisions about financial matters or where a person should live.
It also authorises attorneys of Lasting or Enduring Powers of Attorney to make certain decisions. For example, attorneys will need permission from the Court to make changes to a person’s will.
What happens if I do not seek approval from the Court before making a decision?
If you make a decision on behalf of someone and you are not an attorney or deputy, you are acting without authority even if that person would have wanted you to make decisions for them, for example in the case of spouses. You may be prevented from becoming a deputy and may be personally liable for any financial transactions that occur.
In most cases, you do not need to approval from the Court if you are acting under an Enduring or Lasting Power of Attorney. However, you will require the Court’s approval before making certain decisions, such as making large gifts. If you make a decision which is outside your powers, you could be removed as attorney and may be required to personally pay the money back.
What should I consider:
Can the person make a Lasting Power of Attorney?
Mental capacity is not black and white, it is instead various shades of grey. Many people have good and bad days. If on a good day they are able to understand the implications of making a Lasting Power of Attorney, then they may be able to create a Lasting Power of Attorney.
Who can be appointed as a deputy?
Anyone over eighteen can be appointed as a deputy. It is possible to appoint a professional such as a solicitor to act as deputy but it is common for family members to be appointed.
How many deputies can be appointed?
More than one deputy can be appointed if it is appropriate to do so. For example, it is common to appoint both parents of a child as a deputy.
How long it takes for a deputy to be appointed
It can take between 12 and 18 months to be appointed as a deputy. However, if an urgent decision needs to be made, the Court is able to grant interim orders. It also has a facility for urgent and emergency applications although these should only be used when a decision must be made immediately.
A medical report is required
The Court of Protection will need to see a medical report to confirm that a person does not have sufficient mental capacity to make decisions for themselves. This will usually be completed by a doctor and they usually charge for providing the report.
The cost of making an application
The cost of making the application is paid by the person the application is about. The Court will charge a fee for dealing with the application. Our fees for making the application are determined by the Court and this can be a fixed fee or an hourly rate. The Court will set the hourly rate we are allowed to charge and this is based on the experience of the solicitor. If we are acting as professional deputies, they will need to approve our bill before it can be paid.