Court of Protection
When a person no longer has capacity to deal with their own affairs, then an application can be made to the Court of Protection for a Deputy to fulfil that duty for them.
The most important matter which needs to be determined prior to submitting applications to the Court of Protection is capacity; therefore does the “Patient” no longer have the requisite capacity to make appropriate decisions in respect of their affairs?
If a person still has capacity then you cannot make an application to the Court of Protection, but this is good news as you can become their Attorney following an application to the Office of the Public Guardian for Lasting Power of Attorney, providing the Donor (person granting the power) wants you to actually become their Attorney!
Assessment of capacity
Capacity is the most important factor which must be determined at the outset of any Court of Protection matter.
An appropriate medical practitioner will need to complete a form following a detailed assessment of the Patient. If the medical practitioner determines that the patient is no longer of requisite capacity to manage their affairs then an application to the Court of Protection for deputyship should proceed.
The medical assessment fee can range between £50 – £500 but should be recoverable from the Patient’s funds estate.
The Deputy is usually a relative or in some circumstances it may be a close friend of the Patients. Appointment of a deputy is not a decision which is taken lightly by the Court of Protection and the application process is far more complex, expensive and time consuming than an application for Lasting Power of Attorney.
The application process
There are a large number of forms which must be submitted to the Court of Protection and which form depends upon whether an application is being made in respect the Patient`s Health & Welfare or Property & Financial Affairs.
Applications for Health & Welfare are not as common as applications for Property & Financial Affairs and the Court of Protection are more reluctant to approve Health & Welfare applications. Any Health & Welfare application should not be general and must relate to a specific issue which cannot be dealt with by less formal means.
Property & Financial Affairs applications are the most common and providing the applicant Deputy can establish that they are of suitable character to manage the Patient`s property and finances then they should be appointed as Deputy. Ideally, an applicant deputy in these circumstances should not have been made bankrupt, have any CCJ’s or poor credit history as this will indicate that they cannot manage their own property and financial affairs properly therefore indicating to the Court of Protection a potential risk in handling the finances and property of the Patient. Poor credit is not a blanket ban to being a deputy but a higher bond insurance fee would be likely.
Notifying other interested parties
A deputyship application is by no means a secret process when it comes to who should be informed of the application.
There is a very strict requirement for the deputy to notify interested parties who may object to the proposed deputy being appointed and the interested parties then have the option to join the application process if they so wish. If the parties notified don`t inform the court within 21 days of their intention to formally join the proceedings then the case will progress and they will not be a party to the proceedings.
Applications to the Court of Protection to become someone’s Deputy are not cheap however the Deputy is entitled to be reimbursed for reasonable expenses incurred, provided that the costs are proportionate in comparison to the Patient`s estate. If the Deputy was unable to recover reasonable costs then this would deter applications to the Court of Protection, so recoverability of costs from the Patient`s estate is sensible and very common.
There is usually a Court Fee to commence the application of £400 (unless exempt or entitled to fee remission) and the medical Practitioner’s fee discussed above is usually between £50 – £400 (Medical Practitioner’s fees vary). There is a bond insurance fee which is payable annually and the fee is determined depending upon the size of the estate and generally how much money the Deputy will have access to. There are also annual supervision fees and legal fees for a straightforward application are at least £850 + VAT.
We are a Solicitors practice that operates throughout England & Wales, so regardless of where you are located we can service your case. Why not call our Court of Protection team today and see how we can help you at this difficult time. Please click here for our contact page.
All information is correct on the date of posting.