Court of Protection

If someone close to you is struggling to make decisions for themselves due to advancing age, illness or an accident, you may need to consider stepping in on their behalf. The Court of Protection may be able to grant you the legal right to do this.

Who has the right to be appointed as deputy will depend on the individual circumstances of each case. Usually a close family member will fulfil this role, but friends or even professionals such as solicitors can also act in this capacity. It may be appropriate for a solicitor to act as a deputy in cases where the individual has no immediate family, or where there is a disagreement about who should take on the role.

You will need to consider whether you want to:

A Will is a very important legal document. Unfortunately, not everyone makes one in time. In order to make a Will, an individual needs to be of sound mind. If someone is no longer fully aware of the importance of the document, then they may not be able to write one. In cases such as these, it’s possible to apply to the Court of Protection to request that a Statutory Will is made on that person’s behalf.

As part of the application process, you’ll need to provide a proposed version of the Statutory Will. This should be put together with the person’s best interests in mind.

You’ll need to consider:

There are often difficult decisions to be made when caring for a loved one who’s no longer able to make choices for themselves. Often, an attorney or deputy will be appointed on their behalf to manage this.

However, sometimes a decision may be required when a deputy or attorney has not been appointed. There can also be certain types of decision that attorneys or deputies do not have the authority to make, or decisions that attorneys or deputies cannot agree on.

In cases like these, it may be necessary to apply to the Court of Protection to ask them to make a one-off decision.

The kinds of decisions the Court of Protection can help with include:

The Court of Protection makes decisions for people who don’t have the mental capacity to manage their own affairs. The court can make day-to-day decisions or more complicated one-off decisions about the financial or care needs of someone who can no longer decide for themselves. The Court of Protection can also confer power on other individuals to make decisions and this called being appointed a Deputy.

If a loved one has lost the ability to make their own decisions, you’ll need to apply to the Court to be appointed a Deputy so that you can make decisions for them. There are a number of forms to fill out and you’ll also need to get a medical certificate. This medical certificate will need to confirm to the Court that the person you’re making the application for no longer has mental capacity to manage on their own. We can take care of this process for you so that you get it right first time.

You need to be at least 18 years old, have not been declared bankrupt or have criminal convictions. As part of the process, you’ll need to complete and sign a Deputy declaration to give details of your personal and financial circumstances so that the Court can decide whether to appoint you.

• If the person who has died had a life insurance policy in place, a claim will need to be made on this.
• The final estate, minus the cost of any debt and testamentary expenses, will need to be calculated.
• In cases where there is no Will, all potential beneficiaries of the estate will need to be traced.

Yes. The court can appoint two or more deputies for the same person but you’ll need to consider how best to manage this to ensure that any joint appointment is in the person’s best interests. A joint deputyship means all deputies have to agree on all decisions whereas a joint and several appointment means that deputies can make decisions on their own or with the other(s).

A deputy for property and financial affairs you’ll be able to make decisions about things like paying bills or buying services for the person who no longer has capacity. The scope of your authority is set out in the court Order. The Order will also stipulate things that the deputy or deputies can’t do, such as in some cases, not being able to buy property or make certain types of investments. We consider what decision-making powers the court needs to be asked for in each case.

Yes. If are you appointed as a Deputy but you no longer want the responsibility of the role, you can ask the Court to remove you. We’ll need to consider whether the person still needs a Deputy and if so, who else can be appointed in your place and how to best manage the change over.

As a deputy, you’ll need to keep records of accounts, dealings and transactions made on behalf of the person you’re the decision-maker for. You may also need to complete an annual report. The OPG can also ask you to produce accounts and other information from time-to-time and might also visit you unannounced. It’s really important to keep everything organised and we recommend having a system for recording decision-making in case you need to produce any of this to the Court.

No. A deputy has no statutory duty to make gifts, but the court Order will usually say that you have the same authority to make gifts as if you were an Attorney acting under a registered Lasting Power of Attorney. For all other gifts, you’ll need the Court’s permission.

If you apply to the Court of Protection for them to make a ruling on a one off decision, they will consider all the evidence you have provided very carefully. The decision they come to will be based on what they believe is in the best interest of the individual the decision is being made about. In some cases, there may need to be a hearing in order to collect further evidence. Whether or not there is a hearing, you will usually be informed of the outcome by letter.

In order to sell a jointly-owned property, all co-owners will be required to sign sales documents. This can cause issues if one of the joint owners has lost capacity. Even if an attorney or deputy has already been appointed on that individual’s behalf, they will not usually have the authority to approve the sale of jointly-owned property. In these situations, an application for a one off decision will need to be made to the Court of Protection. The Court will usually appoint at least two trustees to act on behalf of the incapacitated person in regards to the sale.