In the year ending March 2020, the Office for National Statistics (ONS), announced an estimated...
Court of Protection solicitors
This is a complex area, we have tried to explain all your questions you may think of here:
Why would someone need to apply to the Court of Protection?
If you no longer have the capacity to make decisions for yourself and do not have any formal document in place naming someone to make those decisions on your behalf, then someone (the applicant) will have to apply to the Court of Protection to become your deputy.
Who can apply to the Court of Protection?
A deputy must be over the age of 18 and is often someone with a connection to the person who has lost capacity such as a family member or close friend, or a professional such as a solicitor or accountant. They should have sufficient skills to take on the role. The court will require the applicant to complete a deputy declaration to ensure they accept and understand their responsibilities.
What are the main types of Court of Protection applications?
The two main types of application are for a deputy for someone’s property and financial affairs or for their personal welfare.
The order made by the court will set out what the deputy can do but, in general terms, a deputy for financial affairs can do most of the things that you can do, for instance, pay bills, collect your pension, make small gifts and take over bank accounts.
A deputy for personal welfare is allowed to make decisions in relation to your care and health needs. However, it is rare for the court to agree to appoint a personal welfare deputy. If no one is appointed to deal with your personal welfare the local authority have a duty to ensure your needs are met and will make decisions for you.
Are there any other reasons someone might apply to the Court of Protection?
Statutory wills – If you have lost capacity before having made a will, somebody can apply to make a will on your behalf. This is known as a statutory will and whilst a sample will be submitted to the court, it is ultimately their decision as to what the content of the final will, will be.
Gifts – Whilst attorneys under a Lasting Power of Attorney for Property and Financial Affairs or Enduring Power of Attorney have limited powers to make gifts from your money, any gift must be a reasonable amount in relation to the size of your estate. If your attorney wishes to make a large gift, for example for inheritance tax planning purposes, then they must make an application to the court. After looking at your assets, income and expenditure the court will then make a decision as to whether that level of gift can be made.
Sale of property – if you have made a Enduring or Lasting Power of Attorney then, provided you have not restricted your attorney, they will be able to sell your property. This may be necessary if you need to move into residential care. However, deputies must apply to the court for permission to sell a property.
How much does an application to the Court of Protection cost?
The legal fees for making a deputyship application are greater than those for making a Lasting Power of Attorney. There are also court fees and fees charged by a doctor or medical expert to provide a medical report.
How long will it take for the Court of Protection to appoint a deputy?
The process of applying to the court to appoint a deputy can be in the region of 6 to 8 months. If an urgent order is required a fast track application can in some circumstances be made to the court.
What can I do to avoid someone having to apply to the Court of Protection on my behalf?
Whilst in a deputy application the applicant could be a family member, friend or professional advisor, it could also be someone who you would prefer not to handle your affairs or there could be a family disagreement as to who should apply.
A Lasting Power of Attorney enables you to choose the people who you would like to deal with your affairs for you were you to lose capacity, rather than the court deciding who to appoint, or the Local Authority or medical staff making decisions in relation to your health and medical needs.
Making a will also ensure that an application for a statutory will does not have to be made to the Court.