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The area of law covered by the Court of Protection can be complex. We have collated some of the many Court of Protection frequently asked questions and related issues that we are asked about most often.
If you can’t find the answer to your question or the information that you need here, our expert team will be happy to help. Call us on 0161 696 6159 alternatively please complete our online enquiry form and a member of the team will contact you directly.
The Court of Protection is there to help people who do not have the mental capacity to make important decisions about their life, their finances, property, health or welfare. The Court of Protection powers include the authority to make someone a Deputy, which means that person can make these decisions on behalf of the individual, in their best interests.
If there is no nominated Deputy, the Court of Protection decisions can be made on behalf of the individual who has been assessed as lacking the capacity to make these specific choices themselves. There are legal protections in place to help ensure that all decisions made on behalf of the individual are in their best interests.
The Court of Protection also makes decisions on behalf of people lacking mental capacity where they are assessed as lacking capacity to make the decision and there is a dispute between family members and professionals as to what is in their best interests. For example, a family member may disagree with a social worker that it is in their loved one’s best interests to move to a care home or other placement.
Vulnerable adults receiving care packages are also often deprived of their liberty as a result of the restrictions in place to keep them safe. The Court of Protection can also authorise deprivations of liberty to ensure that there is no breach of the person’s human rights, and determine any challenges to a deprivation of liberty brought by a Relevant Persons Representative.
Court of protection rules enable a Deputy to be appointed to make decisions on behalf a loved one who lacks mental capacity. This individual may be a spouse or family member, or a friend of the individual. This should only be applied for if the individual doesn’t have mental capacity currently. If they still have mental capacity now, but want to prepare for the future when they may not, they will need to start the process of nominating someone (or more than one person) to have Lasting Power of Attorney instead.
The Court of Protection Deputy will be able to make a variety of decisions on behalf of the individual, depending on the powers applied for. There are two types of power that can be given by the Court of Protection to a Deputy. They could be able to make decisions relating to finances on behalf of the individual, and they may also be able to make decisions relating to health and medical treatment.
If you want to apply to become a Deputy, the process can be complex. We can help you complete the appropriate application forms and ensure that they are processed by the Court of Protection as quickly as possible.
In Court of Protection cases where a condition is involved which progresses over time, such as dementia, the type of authority that a prospective deputy can apply for will depend on the progression of the condition and whether the individual still has mental capacity to make specific important decisions themselves. If they do currently have capacity, they can nominate a person or people to have Lasting Power of Attorney, to decide what happens when the condition progresses to the point that the individual can no longer make these decisions themselves.
If they don’t have capacity, a loved one can apply to become a Court of Protection Deputy to make these decisions on their behalf.
If a person with a mental impairment such as dementia is assessed to lack capacity to make a particular decision (such as whether to move to a care home or to accept a care package at home), a best interests meeting should be held for a best interests decision to be made. If there is any dispute between professionals and family members, then an application to the Court of Protection must be made for a Judge to make a decision in the person’s best interests.
The process of applying for a Court of Protection Deputyship Order can vary, depending on the specific type of decisions that the Deputy wants to make on behalf of their loved one. The two different types are a property and financial affairs deputy, or a personal welfare deputy.
There are usually several different forms required to make the application valid, including witnessed paperwork. Stephensons can help with this; both with filling in the application forms and ensuring they are processed correctly with the Court of Protection.
Court of Protection timescales for successful applications to become a Deputy can vary, but usually takes somewhere between four to six months.
In terms of application to the Court of Protection in situations where there is a dispute about decisions relating to a person’s health and welfare, there are particular forms and a process to follow to bring an application before the court and the court proceedings can quickly become complex. Our Court of Protection specialists are able to assist with making these applications and representing people lacking capacity and their family members in court proceedings. The decisions to be made on behalf of a loved one are often sensitive and life changing, and rest assured you will be in safe hands in ensuring that the process is dealt with quickly and as stress-free as possible by our experts.
There are set Court of Protection fees that are due. These include an application fee (which you will need to pay twice if you are becoming both types of deputy), an annual supervision fee (which varies, depending on the level of supervision your deputyship needs) and if you are a new Deputy, you will also need to pay a one-off assessment fee.
If you are applying for a property and financial affairs deputyship order, you will be required to pay a ‘security bond’ when appointed. The cost of this will depend on the value of the estate of the person you are Deputy for, and the portion of their estate that you will control with the valid order in place.
All of these fees are subject to change as they are government controlled. You can find the current fee and cost breakdown here.
In addition to the fees related to the Court of Protection order application directly, you may also have legal costs to pay if you are assisted by any professional law services. These fees will vary, depending on the law firm you choose. Some may offer Court of Protection fixed costs, where legal fees are fixed at the start of the process, so there are no unwelcome surprises. In some cases, legal aid may be available to you.
There can in some cases be an application fee in respect of any applications to the Court of Protection in respect of health and welfare disputes and sometimes expert evidence may be necessary which can attract a significant cost.
At Stephensons, we can discuss the funding option that is right for you and your specific circumstances, as we support you at every stage of the process.
It can sometimes be the case that a dispute arises in relation to the decisions made on behalf of someone who doesn’t have the mental capacity to make those choices themselves. Whilst not common, some of the Court of protection problems that we have seen include situations such as objections to an appointment of a Deputy or someone being registered with Lasting Power of Attorney. It may be that you are of the view that the person appointed or registered is not acting in the best interests of the individual that they are making decisions for. Or, it could be the case that you do not think that the person is a suitable candidate for this responsibility and you want to object to the application or registration.
The process of objecting or disputing an application or registration with the Court of Protection can be complex and it’s recommended that you take expert legal advice in this area before doing so. We are also able to assist with responding to applications made by the Office of the Public Guardian (OPG) to remove people from acting as an attorney for their loved ones and represent attorneys in Court of Protection proceedings if there is a dispute. If this is something that you need assistance with, you can speak to the experienced team at Stephensons for more information on the procedure and what to expect.
As set out above, if a person has been assessed as lacking capacity to make a particular decision and there is any dispute between professionals and family members, then an application to the Court of Protection must be made for a Judge to make a decision in the person’s best interests, if the dispute cannot be resolved at a best interests meeting. This process must be followed for any decisions to be made in respect of the person’s health and welfare, such as where they should live, what care they should receive, or who they should have contact with.
Generally, you would primarily contact the Court of Protection when you make an application to become a Deputy or agree to hold Lasting Power of Attorney for someone, using the details on the application paperwork. However, there may be instances in which you need to make an urgent or emergency application, such as when the individual’s welfare is at immediate risk.
If the urgent application is in regard to someone’s day to day care or where they are living (known as their personal welfare, or Section 16 applications), you can contact your nearest regional hub.
For things such as serious medical treatment, where the individual is unable to provide consent for themselves, you can make an urgent application to the Court of Protection, which will be considered by a Judge.
With many years of experience in handling applications, orders and registrations with the Court of Protection, Stephensons can help you at any and all stages of the process, or simply provide the advice and support you need to pursue the best outcome for your specific circumstances. Get in touch today.
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