Saturday, 5 May 2012

FAQ's on The Court of Protection and Deputy Orders

Court of Protection Solicitor, Hertford
Article by
Sharon Brown

What is the Court of Protection?

The Court of Protection is an institution based in London.  It helps to look after vulnerable adults who lack sufficient mental capacity to make decisions for themselves.                                                        

Is the Office of the Public Guardian (OPG) the same as the Court of Protection?

The two institutions are separate but both work with vulnerable adults.  The simplest explanation is that the Court of Protection makes decisions whilst the Office of the Public Guardian handles registration of powers of attorney and ongoing administration matters.


When is a Deputy Required?

A deputy is required if someone has lost mental capacity and has not made a Lasting Power of Attorney (LPA) in advance.

Every individual has the right to set out in advance who they would want to assist them if they lost mental capacity in the future.  This can be done in a Lasting Power of Attorney (LPA).

If the person has not made an LPA then someone with an interest in their wellbeing can apply to the Court of Protection to be appointed as a deputy.  The Court authorises the Deputy to make decisions and act on the other person’s behalf.

How would someone lose capacity?

It is possible to lose mental capacity in a number of ways.  One of the most common ways is when an elderly person suffers from a degenerative illness such as Alzheimer’s or another form of dementia. Other common causes affecting people of all ages are serious accidents, brain injuries and strokes.  

In order for a deputy to be appointed the person must lack capacity to make an LPA for themselves.  They must also lack capacity to manage their finances and/or health and welfare.   

Who decides if someone lacks capacity?

The final decision is made by a Judge in the Court of Protection.  However, the person applying to be appointed as deputy must submit medical evidence to the Court alongside his or her application.  The Court has prepared a formal assessment to be completed by a medical practitioner (such as a GP or consultant) who knows the person who is alleged to lack capacity.   

If the Court decides that someone lacks capacity does that mean they cannot make any decisions for themselves?

No.  The legal test of capacity is issue specific.  This means that even if a deputy is appointed, the person concerned should be involved at every opportunity and if possible allowed to make the decision for themselves.  For example, someone may be able to decide who they wish to leave their estate too in their Will but may not be able to handle complex investment statements.  

What does a Deputy do?

Someone appointed as a property and financial affairs Deputy looks after that person’s finances.  This includes paying any bills, checking direct debits, reviewing savings, applying for benefits and whatever else may be required.  If it was in the person’s best interests they could also sell the person’s home or other property (with Court permission).

A deputy has to account for their actions at all times and will have to obtain the Court’s permission for any major decisions.  They are required to submit annual accounts by way of a ‘Deputyship Report’.  This gives the Office of the Public Guardian a chance to approve the accounts and also to review the decisions made by the Deputy.  

Who can be a deputy?

In theory, anyone over the age of 18.  However, the Court are obviously keen to ensure that the person they appoint is suitable. Therefore it is not advantageous (though not necessarily fatal to an application) if the person applying has been a declared bankrupt. 

The proposed deputy will usually have a personal connection to the person alleged to have capacity, such as a close friend or relative, or will be a professional such as a solicitor or accountant.  

What is the procedure for applying to be appointed as deputy?

The first step is to obtain the necessary application forms.  These can be obtained from the Court of Protection or if you are being assisted by a solicitor they will provide them for you.

The first step is for the Courts formal assessment of capacity (Form COP3) to be completed.  This is usually done by the person’s GP but will occasionally be done by a consultant, psychiatrist or other medical practitioner dependent on the specific circumstances. 

The other application forms must then be completed, giving details of the order being applied for, the finances and personal circumstances of the person who is alleged to have lost capacity, and personal details of the person applying.

The application, together with the requisite fee can then be sent to the Court for issuing.  Once the Court issues the application form, various people must be notified.

The Court will raise any questions it may have or ask for any additional evidence.  Provided there are no problems and the Court is happy it will make the order and appoint the deputy.

How long does it take to be appointed as deputy?

Typically it takes 3 to 6 months to finalise the application for a deputy order.

If you would like further information please telephone 01992 422128 or email Sharon@gardenhousesolicitors.co.uk


www.gardenhousesolicitors.co.uk

Tel: 01992 422 128

Email: info@gardenhousesolicitors.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

3 comments:

  1. Is there an upper age limit to becoming a Deputy

    ReplyDelete
  2. How do I check whether I'm winning or not

    ReplyDelete
  3. Thank you, this was very useful. Especially the bit about 3 - 6 months.

    ReplyDelete