Court of Protection Orders - Some FAQ's
What is the Court of Protection?
The Court of Protection is an institution based in London. It has been set up to help to look after individuals who lack the capacity to make decisions for themselves.
What is the difference between the Court of Protection and the Office of the Public Guardian?
The Court of Protection and Office of the Public Guardian (OPG) are basically the same institution and their names are often used interchangeably. The simplest explanation is that the Court makes all the decisions and the OPG handles the ongoing administration. The two bodies work together, but with separate defined roles.
When would the Court appoint a Deputy?
A Deputy is appointed when an individual’s affairs need to be looked after because that individual is no longer capable of making decisions for themselves. This may be due to illness or disability, for example.
Every individual has the right to appoint someone of their choice in advance to look after their affairs on their behalf, should they at a later stage lack the capacity to manage their affairs themselves. This is done by making a Lasting Power of Attorney (LPA). If someone has not made an LPA and they lose capacity then there will need to be an application to the Court of Protection asking the Court to appoint a Deputy to act in the same way for that individual as an attorney would.
How would someone lose capacity?
Someone may lose their mental capacity in a variety of ways. The most common of these is when an elderly person is suffering from one of the various forms of dementia in a moderate to advanced stage. Other common ways in which someone lacks capacity include people who have suffered from a brain injury, people who suffer from severe post-traumatic stress disorder and people who suffer from severe forms of cerebral palsy.
In order for a Deputy to be appointed, a person must lack the capacity to appoint a solicitor for themselves under an LPA, and must also lack the capacity to manage either their financial property affairs in general and/or their personal welfare decisions.
What does a Deputy do?
A Property and Affairs Deputy looks after someone’s financial affairs. This includes paying bills and taking over bank accounts, for example. A Deputy can do all the things a solicitor can do. At the high end of the scale, a Deputy can sell that person’s house (with the Court’s permission) on their behalf if it is in that person’s best interests.
A Deputy has to account to the Court at all times. Any major decision (such as selling someone’s property – as above) needs the Court’s permission. Every year the Deputy has to provide a ‘Deputyship Report’ to the Court. This gives the Court information on decisions that the Deputy has made on that person’s behalf and also provides summary accounts for the Court to approve.
Who can be a Deputy?
Usually the Deputy will have a connection to the person who lacks capacity. It is usually a family member or close friend who is appointed as Deputy, or a professional such as a solicitor or accountant.
What is the process involved in appointing a Deputy?
First of all medical evidence has to be obtained. The Court will not accept jurisdiction without medical evidence in the required form. The required evidence is submitted to the Court using its standard form - the COP3.
The COP3 is usually completed by the person’s GP or by a psychiatrist. Sometimes a psychologist will complete the form where appropriate.
There are then other forms to complete. These give details to the Court about the type of order being asked for, details about the person applying to be appointed as Deputy and, finally (and most importantly), details about the person who lacks capacity.
The application (comprising of four different forms) is then sent to the Court of Protection and the Court will make an order appointing the Deputy if they believe the same is warranted and the relevant person lacks capacity.
How long does the process take, how much does it cost and who pays for it?
Once the application has been sent to the Court it can take 2 or 3 months for someone to be appointed as Deputy. There can be delays prior to sending the application to Court as the medical evidence can sometimes take a long time to get hold of depending on the medical practitioner involved.
The medical practitioner sometimes charges a fee for preparing the medical evidence required. Some practitioners do not charge for their services. When the practitioner does charge, their fee can range from £50 to £300.
The Court charges an application fee of £400. There is also an appointment of Deputy fee of £125.
The Court then charge an annual supervision fee which ranges from £0 to £800. The most likely supervision fee for a Deputy looking after an elderly relative is £175 per annum.
The Deputy has to also take out a ‘security bond’ to cover their actions as Deputy and this too is payable annually. The bond is set by the Court; the more assets a person has (and therefore the more responsibility the Deputy has), the higher the bond. The bond levels seem to have increased since October 2007. It is likely that the bond will be at least £200.
Finally, a solicitor will also charge a fee for making the application to appoint the Deputy. There is a lot of work involved and the Court will state in the Order they make that the solicitor is entitled to charge a fixed fee of £850 plus VAT. This would only really apply, however, in the simplest of cases. A solicitor is entitled to charge more than this, but any bill they raise needs to be assessed and approved by a Costs Judge at the Supreme Court Costs Office (‘SCCO’).
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