Court of Protection Solicitors

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0800 988 7756

Court of Protection specialists

Our solicitors can help you obtain a deputyship order from the Court of Protection. We know how emotional and stressful these situations can be, so our team will always act with empathy and make the process as smooth as possible.

We also deal with emergency applications for deputyship orders where urgent decisions need to be taken on a patient’s behalf.

For an initial discussion, call us on 0800 988 7756 or book an appointment below.

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Why Would I Need A Deputyship Order?

Where an individual does not have the mental capacity to manage their own property and financial affairs and does not have a Lasting Power of Attorney in place, it is necessary to apply to the Court of Protection to obtain an order appointing someone as deputy. The deputy will have the authority to make decisions on the individual’s behalf and will be supervised by the court.

How Can We Help You With Your Court Of Protection Application?

Our specialist solicitors deal with various Court of Protection applications. For example, appointing a deputy, authorising the sale of a property or appointing a new trustee for jointly-owned property. We can also provide ongoing support for deputies, such as assistance with annual accounts or disputes with the court.

We also provide advice and representation to parents with disabled children who have been “locked out” of their Child Trust Funds because the child is not deemed to have the capacity to manage their own finances. If you would like some information about recovering a Child Trust Fund on behalf of a child, contact us to see how we can help.

Why Choose Our Solicitors For Your Court Of Protection Application?

Specialists Wills and Probate SolicitorsSpecialists

Our team is made up of specialist solicitors with many years of experience in advising on Court of Protection matters. The department is headed by Andrew Milburn, who is a member of STEP (the Society of Trust and Estate Practitioners) and is an accredited member of The Association of Lifetime Lawyers. All our team are Dementia Friends, meaning they have a strong understanding of the challenges of the condition.

Our team have been recognised as Private Client experts. We were awarded Highly Commended in the Private Client Team of the Year – Wills and Probate in the Modern Law Private Client Awards 2023. And we were delighted to have won the prestigious Private Client Team of the Year – Boutique at the British Wills and Probate Awards 2023.

Wills and Probate Services Service

Our team are knowledgeable and experienced. We will listen to your situation and give you straightforward, practical advice with no legal jargon. Our solicitors’ experience in Court of Protection matters means that they will act with compassion and ensure that the process is a stress-free as possible.

Here for you, wherever you are icon Here for you, wherever you are

We have offices in LeedsLeeds North (Moortown) and London.  However, we can assist you with your Court of Protection application wherever you are. We can have meetings with you by telephone or video call.

Transparent Fees Transparent pricing

We understand that you will want to know how much everything will cost. We will give you clear costs advice from the outset.

Book weekend and evening appointmentsWeekend and Evening appointments

Life can be busy. So to make life easier, we offer out of hours appointments to our clients dealing with Court of Protection matters. You can meet with us until 8pm on a Wednesday. Or 9am to midday on a Saturday morning.

Call us today on 0800 988 7756 for an initial discussion with our specialist Court of Protection solicitors. Our telephone lines are open 8.30am – 9pm, seven days a week.

Alternatively, book an appointment online.

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Court of Protection FAQs

What is mental capacity?

Mental capacity is the ability to make decisions for yourself. We all make decisions every day. Some of these are small, such as what to have for dinner, while some are big, such as how to invest your money. Most of us can make these decisions for ourselves. However, some people may find that their ability to make some decisions is affected.

 

For example, someone with a learning disability may be able to make day to day decisions but lack the capacity to make decisions about bigger matters, such as where to live. For people living with dementia, their ability to make decisions may reduce as the dementia progresses.

 

What is the Court of Protection?

The Court of Protection (COP) is a government body that was created by the Mental Health Act 2005. It has the authority to decide whether someone has mental capacity. If they do not, it can make orders to help them. This could be an order requiring a certain action to be taken on their behalf or an order appointing a deputy to make decisions for them.

What powers does the Court of Protection have?

If somebody lacks capacity, the Court of Protection has the power to:

  • Appoint a deputy to deal with their property and finances
  • Approve the sale of somebody’s property or appoint a replacement trustee for joint property
  • Make decisions about health and welfare issues
  • Appoint a deputy to make health and welfare decisions
  • Make a ‘statutory Will’ setting out what will happen to the person’s estate after their death
  • Approve lifetime gifts on behalf of the person
  • Make decisions about whether the person can be deprived of their liberty under the Mental Capacity Act
  • Deal with objections to the appointment of attorneys under Enduring and Lasting Powers of Attorney
  • Remove attorneys appointed under an Enduring or Lasting Power of Attorney
  • Deal with emergency applications where an order is needed as a matter of urgency
What Is A Deputy?

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks the mental capacity to make those decisions for themselves.

What duties does a deputy have under the Mental Capacity Act 2005?

A deputy appointed by the Court of Protection to represent a patient must follow the code of practice set out in the Mental Capacity Act 2005 in all of their actions. The code of practice includes liberty protection safeguards.

There are five key principles that a deputy must be aware of and follow in all actions and decisions on behalf of the patient.

  1. A presumption of capacity – the deputy must assume that the patient is able to make a decision unless it is proved otherwise
  2. The patient must be supported to make their own decisions wherever possible – so the deputy must help the patient to try and make a decision and involve them in the decision even if they cannot make it themselves
  3. The right to make an unwise decision – if they are able to make a decision themselves, they should be allowed to do so, even if this is an unwise decision
  4. Acting in the patient’s best interests – every action taken by a deputy must be in the patient’s best interests
  5. Taking the less restrictive option – the deputy must make the decision that least interferes with the patient’s rights and freedoms and also consider whether there is a need to intervene at all
What are the two types of deputyship?

The two types of deputyship are:

 

  • A property and financial affairs deputy; and
  • A health and welfare deputy
Property and financial affairs deputy

A property and affairs deputy has the authority to manage the patient’s financial matters, to include:

  • Dealing with their bank account
  • Paying their mortgage or rent
  • Paying bills
  • Insuring their home
  • Receiving benefits on their behalf
  • Managing their investments
  • Paying for the patient’s day to day expenses

The deputy will have the authority outlined in the deputyship order, which may not extend to selling the patient’s home. If this needs to be done, it may be necessary to make a separate application for an order giving the deputy authority to do this.

Personal welfare deputy

It is less common for the Court of Protection to make a personal welfare deputyship order. It is only done in cases where the court needs to be sure that the decisions made will be in the patient’s best interests, for example, because different family members have different opinions over the care needed, or where a deputy is needed to deal with a specific issue such as arranging a move to a care home.

A personal welfare deputy can make decisions about where the person lives, the care they receive and some decisions about medical treatment. However, the court is reluctant to make overarching appointments for health and welfare matters and prefers to consider specific decisions instead.

Circumstances where a personal welfare deputyship order can be requested include where:

  • The decision needed relates to treatment to which the patient cannot consent
  • The decision is complex or difficult
  • There is disagreement over the course of action to be taken
  • The patient will need ongoing help with making personal health and welfare decisions
What decisions cannot be made by a deputy?

There are a number of restrictions preventing a deputy from taking certain actions, including:

  • Restraining the patient, unless it is to prevent harm
  • Stopping life-sustaining medical treatment
  • Taking advantage of the patient, for example, by profiting from a decision made on their behalf
  • Making a will on behalf of the patient or changing their will – statutory wills can only be made by Court of Protection order
  • Giving gifts on behalf of the patient, unless ordered by the court
  • Holding the patient’s money or property on their behalf in the deputy’s own name.
How must a deputy deal with property and affairs?

As well as ensuring that all decisions and actions are in the best interests of the patient, a deputy must:

  • Keep the patient’s money and property separate from their own;
  • Keep detailed records of all financial transactions; and
  • Submit an annual deputy report to the Court of Protection

The deputyship order may specify that the deputy needs to manage a Court Funds Office account. This is an account where the Court of Protection will hold the patient’s money and the deputy will have the authority to deal with it on the patient’s behalf.

What does Court of Protection allow you to do?

The deputyship order will set out exactly what you have the authority to do, as well as any restrictions. Under a property and financial affairs deputyship order, you will usually be able to manage the patient’s day to day finances and investments. The order may include some restrictions however and you need to make sure that you are familiar with these.

If you need to do something that is precluded by the order, you will need to make a separate application to the court for a decision on that single issue.

What’s the process to become a deputy?
  1. Notify the person to whom the application relates that you are applying to become their deputy. You must then complete the relevant form within 14 days.
  2. Notify three other relatives or close contacts of the person to whom the application relates that you are applying to become their deputy. Ask them to complete and return the relevant form within 14 days.
  3. Submit your application within three months of doing the above. The Court of Protection will then process your application. The application must be accompanied by an assessment to confirm that the person lacks capacity to manage their own affairs.
  4. The court will decide whether you are appointed the deputy or not.
  5. Once appointed as a deputy, there is an annual supervision fee to pay, and the deputy will have to submit annual accounts to the court. There is also an insurance bond to put in place.
Do you need a solicitor for Court of Protection?

It is open to you to make an application yourself to become a deputy. However, the process is relatively time-consuming and you do need to make sure that you provide all the paperwork that the court needs or your application is likely to be delayed or rejected.

We therefore recommend that you ask a specialist solicitor to deal with this on your behalf.

Can a solicitor act as a Court deputy?

Yes. If the patient does not have a relative who has the time or the expertise to take on the role of deputy on their behalf, a professional Court of Protection deputy can be appointed. This is generally a solicitor with particular expertise in Court of Protection matters and with a high level of understanding and experience in working with the elderly and vulnerable. 

How long does a deputyship application take?

Timescales vary but it typically takes between six months and a year to be appointed as a deputy. You can ask the Court of Protection to process matters urgently if needed. This will be considered on a case by case basis.

What happens when someone dies who is subject to a Court of Protection order?

The deputyship order will no longer be in effect and the deputy will no longer have any authority under it to deal with the patient’s assets. Their assets will form part of their estate and be dealt with by either their executors if they have a will or their next of kin if there is no will.

What is the difference between Lasting Powers of Attorney and Deputyship?

A Lasting Power of Attorney (LPA) has a similar effect to a deputyship order in that it appoints someone to act on behalf of an individual should that individual become unable to manage their own affairs.

Making an LPA is a simpler process but can only be done by someone who has the mental capacity to understand the implications of what they are signing. When making an LPA, the individual in question can choose who they would like to deal with their affairs should they lose capacity. They can choose one or more attorneys to represent them. If they wish, they can choose different attorneys for property and financial affairs to those chosen for health and welfare matters.

If someone already lacks mental capacity, they can’t make an LPA.

Is there a way to avoid making an application for a deputyship order?

Yes. If you have mental capacity, a good way to plan for the unknowns in your future is to make a Lasting Power of Attorney.

By making a Lasting Power of Attorney, you appoint people to act on your behalf in making decisions should you later become unable to do so. This is faster and more cost-effective than having to have a deputyship order made, so it is recommended that everyone consider putting an LPA in place.

For more information, please visit our Lasting Power of Attorney page.

Wills and Probate Team

Andrew Milburn

Partner

0113 532 7189
 amilburn@levisolicitors.co.uk

Andrew is a partner and head of our wills, probate and estate administration department. Read More.

Connor King

Solicitor

0113 468 4097
 cking@levisolicitors.co.uk

Connor King is a solicitor in our wills, probate and estate planning team. Read More.