What Is The Court Of Protection?

Gemma Hopper

There are situations where a close friend or family member will need someone to act on their behalf for legal, financial or/and health and welfare decision making issues.

A lot of people have heard of a Lasting Powers of Attorney (LPA), which is when someone nominates a person to act on their behalf, normally in relation to legal and financial decisions. An LPA is put in place while that person still has mental capacity and can then be used once registered by agreement of the person who has granted it. It is often activated when that person’s mental capacity declines, meaning they are no longer able to look after their affairs.

If someone loses mental capacity without an LPA in place, a close friend or family member seeking to act on their behalf will need to apply to the Court of Protection to become their Deputy. The Court of Protection makes decisions or actions under the consideration of the Mental Capacity Act 2005.

Loss of mental capacity and the Court of Protection

Generally, the reasons why people lose their mental capacity are due to degenerative conditions, such as dementia or sudden, brain-related injuries. If someone loses mental capacity, they can’t legally appoint anyone to look after their affairs. This will need to done by the Court of Protection.

The Court will look to appoint a Deputy to act in the best interests of the person in question. By becoming a Deputy, a person has the same powers as are granted by an LPA, meaning they can access bank accounts and manage other financial matters on behalf of a person who has lost capacity.

However, as it is a Court order there are additional costs (detailed below) and responsibilities for Deputies to take into consideration, which ensure that the Deputy continues to act in the best interests of the person they are appointed to represent.

Making an application to the Court of Protection

Generally, the following people are able to make an application to become a Court of Protection Deputy:

  • A person over the age of 18.
  • Close family member or friend.
  • A professional organisation, such as a law firm or accountancy company.

The process of applying to the Court of Protection usually takes between 6 and 12 months and the procedure is initially focused on the mental capacity of the person to whom the application relates and whether a Deputy needs to be appointed to look after their affairs.

Once the Court of Protection is content that the person does lack the mental capacity to make their own decisions, they will consider whether to issue a Court order to appoint the Deputy. When making an application, there is a lot of work involved in gathering evidence, listing assets and making the case that it is in the incapacitated person’s best interests to make someone a Deputy.

A person looking to become a Deputy will usually have to pay a fee to apply to the Court of Protection. This fee is £371 but if there are further Court hearings that there will be additional substantial costs to pay.

Once a person has been appointed a Deputy, there are also ongoing annual payments that will need to be paid, which are:

  • General supervision – £320
  • Minimal supervision (payable in instances where a property and affairs Deputy is managing less than £21,000) – £35
  • Surety bond (also known as a security bond) – up to £250 a year
    • This is insurance that protects the assets of the person whose affairs are being managed.

In certain cases, a person acting as a Deputy may be able to claim a refund of these fees.

Further information on becoming a Court of Protection Deputy can be found here.

Appointing a professional as a Deputy

In some instances, generally involving large estates or settlements or when an incapacitated person has no close family or friends to appoint as a Deputy, the Court will generally insist that a professional organisation is appointed.

Something that unfortunately happens quite often is the sudden mental incapacity as the result of a brain injury, such as a workplace accident in which the claimant is awarded a large settlement as compensation.

These settlements can run into millions of pounds to cover the cost of life-long care resulting from the injury. Properly managing that amount of money is extremely challenging for most prospective Deputies. Initially, there are considerations in relation to making changes to living arrangements, such as home alterations, arranging for care schedules, physiotherapy, and these things have to be managed throughout the incapacitated person’s life in addition to managing the fund itself.

This requires a lot of work, which is why, in certain instances, the Court of Protection will insist on appointing a professional Deputy to act in the person’s best interests.

How Nelsons can help

If you have any questions in relation to the Court of Protection or about becoming a Deputy, please contact a member of our expert Court of Protection team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.

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