Court of Protection Explained

The Court of Protection is part of HM Courts & Tribunal Service that makes decisions on behalf of people who can’t make decisions for themselves, usually when that person does not have a registered Lasting Power of Attorney in place.

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The Court is responsible for a variety of decisions, including the appointment of a ‘deputy’ or ‘deputies’, to make decisions for the person who lacks capacity. A Deputy in most cases tends to be a close relative but, in some cases, a professional deputy, such as a solicitor, can be appointed.

Whilst the process for obtaining a Deputyship Order for property and finance is fairly straightforward, the Court is less keen to make general Orders for a person’s health and welfare, unless there are good reasons for doing so.

The Court can also make other decisions, such as:

• Settling disagreements on mental capacity that can't be settled elsewhere,
• Authorising applications to sell or purchase property,
• Granting permission for one-off decisions to be made,
• Handling urgent or emergency applications where a decision must be made on behalf of someone else without delay,
• Considering applications to make statutory wills or gifts,
• Making decisions about when someone can be deprived of their liberty under the Mental Capacity Act,
• Making decisions about the validity or the registration of a Lasting Power of Attorney, or an enduring Power of Attorney, and
• Making an urgent healthcare or personal care decision where there is no Deputy or Power of Attorney

Timeline

The timescales involved vary and, in particular, can be affected by the complexity of the case and the Court’s workload.

Currently, applications to name a Deputy for property and financial affairs can take in the region of 6 – 9 months from the application being sent to the Court until final completion, with more complex cases taking significantly longer.

Cost

A Court of Protection application can be a costly process although in some cases, such as an application for a person or persons to be named as a Deputy, are subject to minimum fixed costs as set by the Court. For example, costs for a Deputyship Order for property and finance are set £1,204 +VAT (20%) although, for complex matters, it is possible for a higher fee to be agreed by the proposed Deputy.

Who the costs are paid by, will depend on whether the application relates to property and finance or health and welfare decisions. Some costs are paid by the person lacking capacity and some are paid by the applicants themselves.

Dependent upon the applicants’/incapable person’s income and capital, you may also need to pay an initial application fee of £408. Exemptions and remissions are available for those receiving certain benefits or if they have low income or capital available to them.

When making an application, medical evidence is necessary to show that a person does not have capacity. The GP or Consultant preparing the medical assessment, which must be in the Courts prescribed form, will likely make a separate charge for their involvement.

Before the Court makes a final order, the Deputy may also have to take out a ‘bond’ akin to an insurance policy to cover the assets of the incapable person. This is generally payable annually. The premium for the bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the cost of the bond. Costs are in the region of £100 to several hundred pounds each year and may be amended if the person’s assets increase after the Order has been issued.

How can Hegarty help?

If you need further advice or support with Court of Protection, our friendly legal experts are here to help.