Court Of Protection Frequently Asked Questions

The Court of Protection makes financial or welfare decisions on behalf of people who don’t have the mental capacity to make those decisions for themselves. Our expert solicitors have answered your most frequently asked questions about the Court of Protection to help you understand how it works.

Court of Protection

Deputyship

Personal Injury Trusts

Statutory Wills

If you’d like to speak to one of our expert Court of Protection solicitors, please call us on 0370 1500 100 or get in touch online.

What Is The Court Of Protection?

The Court of Protection was created under the Mental Health Act (2005) to make decisions about whether someone has the mental capacity to make their own decisions. If they decide your vulnerable loved one lacks mental capacity, the Court can then appoint a deputy to make financial or welfare decisions on their behalf.

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What Powers Does The Court Of Protection Have?

The Court of Protection has the power to:

  • Decide whether your loved one has the mental capacity to make financial or welfare decisions for themselves
  • Appoint deputies who can make decisions for your vulnerable loved one on an on- going basis
  • Give you permission to make a one-off decision for your vulnerable loved one
  • Handle emergency applications when you urgently need a decision to be made on your vulnerable loved one’s behalf, within a tight time frame
  • Make decisions about a lasting power of attorney or enduring power of attorney and consider any doubts about their registration
  • Decide on applications for making statutory wills or gifts
  • Make decisions about when your vulnerable loved one can be deprived of their liberty under the Mental Capacity Act.

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How Long Does The Court Take To Appoint A Deputy?

The process of appointing a deputy can take four to six months. The Court can process matters urgently when needed.

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What’s The Process To Become A Deputy?

  1. Submit application: Once you submit a deputy application to the Court of Protection, the Court will then process your application.
  2. Notify those involved: After the application is processed, you must notify the person the application is about, as well as anyone who needs to be kept informed, within 14 days of the issue date. If no one raises any objections, the Court of Protection sends the application to an Authorised Officer or a Judge for their consideration.
  3. The Court will make a decision: Once the application has been considered, the Court will either make a deputy order to appoint you as the deputy or send an interim order. This order is usually to ask you to provide more evidence where needed on your application.

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How Much Does It Cost To Apply To Be A Deputy?

To make an application to the Court of Protection for a deputy to be appointed, we estimate our fee to be between £2,500-£3,500 plus VAT. You will also need to pay a court application fee of £371 and any other costs that we accrue while working on your application (known as disbursements). You can make an application yourself without using a solicitor, but you may feel more comfortable getting help from a solicitor who has been through this process before.

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What’s The Process If You Need To Sell Property Belonging To Someone Subject To The Court Of Protection?

A deputy order will often give you authority to manage the property and affairs of your vulnerable loved one. This means you can sell the property the usual way by acting on that person’s behalf.

In some cases, the deputy order may have a restriction in place saying that you can’t sell any property on the vulnerable person’s behalf without first getting authority from the Court. In this case, you’d have to make an application to the Court. After giving them the details of the property you’d like to sell, the Court must approve the sale before it can take place.

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Can You Regain Control Over Your Affairs If You’ve Been Subject To A Court Of Protection Order?

Yes. To regain control of your affairs, an assessment must be carried out by a medical professional to confirm that you’ve regained capacity.

You can then send an application to the Court asking them to remove your deputy and give you back the authority to manage your own affairs.

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What Happens When Someone Who Is Subject To A Court Of Protection Order Dies?

The Court of Protection order will no longer be in effect after your loved one has passed away. This means the authority that their deputy had over their affairs also ends.

In financial matters, the deputy is responsible for transferring any assets they manage over to the person or people managing the deceased’s estate.

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What Is A Deputy?

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

There are two types of deputy:

  • A property and affairs deputy can manage bank accounts on someone’s behalf, pay their care fees or pay their household bills, etc. They can also buy or sell a property for the person to live in.
  • A personal welfare deputy can make decisions about where the person lives, the care they receive and some decisions about medical treatment.

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Who Can Be A Deputy?

Any adult over the age of 18 can be appointed as a deputy. They must meet a number of conditions such as not having a criminal record or not being declared bankrupt. Non-professional deputies are usually a relative of the person who lacks capacity.

Individual solicitors or a trust corporation (a corporation empowered to act as a deputy or trustee) can be professional deputies.

Two or more people can be appointed to act as joint deputies to act on someone’s behalf.

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What’s The Difference Between Power Of Attorney And Deputyship?

Making a Lasting Power of Attorney (LPA) is different because LPAs are appointed by the person they will be making decisions for, before they lose mental capacity. That person has to understand the powers they’re giving to the LPA at the time they appoint them.

If someone already lacks mental capacity, they can’t make an LPA. Instead a loved one would need to make an application to the Court of Protection for a deputy to be appointed.

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What Decisions Can A Deputy Take?

A property and affairs deputy can manage someone’s bank accounts, pay their care fees, pay their household bills, or even buy or sell a property for the person to live in.

A personal welfare deputy can make decisions about where the person lives, the care they receive and some decisions about their medical treatment.

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Can A Deputy Be Changed?

You can make an application to the Court of Protection for the current deputy to be discharged and replaced with an alternative deputy.

You might want to apply to change a deputy if you’re concerned that they’re not making decisions in the best interests of your vulnerable loved one. Another reason might be that the current deputy isn’t getting along with or isn’t the right fit for your vulnerable loved one. It’s important that your vulnerable loved one trusts their appointed deputy to make decisions on their behalf.

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What Can You Do If You Believe A Deputy Isn’t Acting In The Best Interests Of The Person They Represent?

If you’re concerned about a deputy, you can make an application to the Court of Protection or contact the Office of the Public Guardian with details of your concern.

You might be concerned that a deputy:

  • Is not acting in the best interests of your vulnerable loved one
  • Isn’t the right fit for your vulnerable loved one
  • Has become incapable of acting as a deputy
  • Has made a decision outside of the Court of Protection’s powers.

If you make an application to the Court, they have the power to remove a deputy or to change the level of authority they have to make decisions on your loved one’s behalf.

If you’re concerned about a deputy making financial decisions for your loved one, you can also contact the Office of the Public Guardian (OPG). This is a government body that polices the activities of deputies who look after the financial affairs of vulnerable people.

If the OPG investigates your concern, they will end a letter to the deputy to let them know they’re being investigated. The OPG has the power to give guidance to or take action against any deputies they find guilty of financial abuse.

If you’re concerned about the deputy appointed for your loved one, our Court of Protection solicitors can help you and your loved one navigate these systems. Give us a call on 0370 1500 100 or contact us online.

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What Is A Personal Injury Trust?

A personal injury trust is a legal arrangement that allows you to hold and manage the funds you received because of an injury, most often compensation from a personal injury claim. A personal injury trust will be managed by two or more trustees. The trustees will make decisions together how to manage the funds to make sure the money is being used in the best way possible. This includes any payments made out of the trust.

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What Are The Advantages Of Putting Money In A Personal Injury Trust?

When the government assesses your eligibility for certain means tested state benefits and services, money held in your personal injury trust is ignored in their assessment. This means it won’t affect your entitlement to benefits from the government.

A personal injury trust can also protect very young, old, disabled or vulnerable people from their money being used inappropriately. This is because each of the trustees must authorise any transactions within the trust.

The benefit of having professional trustees is that they can use their knowledge and experience to provide valuable support and advice when making important decisions. They make sure funds are managed properly to protect your long term interests and meet your long term goals.

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What Can Money From A Personal Injury Trust Be Used For?

The trustees must use the money held in the trust so it benefits the person who received the personal injury compensation. This can include:

  • Buying property
  • Investing money
  • Paying for specialist care
  • Paying for therapy
  • Paying household bills
  • Covering daily costs (such as buying new clothes, or grocery bills).

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How Is Money Held In A Personal Injury Trust Taxed?

A personal injury trust is known as a “bare trust”. This means that any income from the trust fund belongs to the injured person who receives it, so this money needs to be declared on their personal tax return. The personal injury trust is taxed at the person’s normal rate.

If the funds in the personal injury trust gain in value, the person who benefits from the trust may have to pay capital gains tax. However, they can use their personal capital gains tax allowance to minimise this tax bill.

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What Is A Statutory Will?

A statutory will is a will that’s made and approved by the Court of Protection on behalf of a person who lacks the mental capacity to make one themselves. The Court of Protection will make and approve a statutory will if your vulnerable loved one hasn’t already got an existing will made and sometime even if they do.

If your loved one has an existing will, a statutory will can still be made for them if there’s been a significant change in their family or in UK tax law since the original will was made. Examples of family changes might be a family member getting married or passing away, or a new family member being born.

You can challenge a statutory will made on your loved one’s behalf if you believe:

  • The will doesn’t reflect what your loved would do if they were able to make their own will.
  • The deputy hasn’t acted in your loved one’s best interests
  • Your loved one has the capacity to make their own will

If you’re concerned about your loved one’s statutory will, or you want to challenge their will, we can help. The combined force of our Wills team and our Court of Protection team can help make sure your loved one’s wishes have been respected. Call us on 0370 1500 100 or get in touch online.

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