Where someone lacks the mental capacity to manage his or her own affairs and hasn’t previously made a Power of Attorney to appoint someone to help them (the Attorney), then it may be necessary for the Court to appoint someone to help them in relation to his or her property and finances. The person appointed to act is known as a Deputy and an application for the Deputy appointment is made to the Court of Protection.
The Court of Protection is based in London and its purpose is to help those who no longer have the mental ability to make their own decisions in relation to their finances, affairs and welfare.
A Deputy application need not necessitate attendance at the Court as the application can proceed by a paper application. See more information on the role and duty of a Deputy.
Role of the Deputy
Anyone over the age of 18 can be appointed as Deputy. It is usually someone who is known to the person lacking capacity, for example a family member or their Solicitor or Accountant can be appointed. The Court will always look to ensure the proposed Deputy is a suitable choice.
A Deputy is responsible for the management of someone’s financial and property affairs. The Court of Protection will provide some direction as to how the Deputy must manage the affairs of the person who lacks mental capacity. The person lacking mental capacity is known as P in the application. The day to day running of P’s finances will lie with the Deputy and therefore dealings with Banks, Accountants, Solicitors will be the responsibility of the Deputy. Each year the Deputy must submit accounts to the Court which are a summary of P’s finances.
The Court of Protection Application
An Application to be appointed as someone’s Deputy is made in writing in a series of standard fact finding forms.
Medical evidence that P (the person lacking capacity) has lost mental capacity will need to be submitted with the Deputy Application. The medical evidence is submitted in the Court’s standard form.
It can take some months from start to finish to have someone appointed as a Deputy. The application requires substantial information which may take a while to collate as P’s Banks, Medical Practitioners and Solicitors will have to be contacted.
The costs in the Deputy application are in most cases set by the Court.
The Costs of a Court of Protection Application
In most Deputy applications the Court of Protection fixes the costs of the Solicitors. As well as the Solicitor’s fees there is a Court fee, a Deputy appointment fee, a Security Bond fee, an Annual Review fee and the Medical Practitioner who confirms P’s (the person lacking capacity) mental state will usually charge a fee.
The Solicitors’ costs cover advice, preparation and submission of the Application. These are fixed by the Court but in more complex matters the Solicitor can charge the matter outside the fixed rate and the costs will then be assessed by the Court on completion. Where a matter is not to be charged at the fixed rate then the Deputy will be consulted beforehand.
The bond fee is an indemnity fee which covers the Deputy’s actions and omissions.
P (the person lacking capacity) will be responsible for paying all the costs in a Deputy application. The problem arises when the costs need paying before the Deputy Appointment Order is made and therefore before the proposed Deputy has access to P’s money.
Usually the Solicitor will wait for his or her fees until after the Deputy application is granted and therefore until the Deputy can access P’s accounts. The Court however may want their fees paying in advance and this can sometimes fall on the proposed Deputy.
The Bond however must be paid before and again in some cases the proposed Deputy will have to meet that cost until he or she can be reimbursed from P’s funds once the Order has been granted.
In some circumstances the Court of Protection has been known to issue a short interim order to enable banks to release P’s monies early for court costs.
If you lack the mental capacity to make a Will then it may be possible for the Court of Protection to make a Will on your behalf.
Not all applications to the Court require you to attend a hearing and the Court can make a Will if it sees fit on the paper application alone.
On an application for a Statutory Will you must show that the proposed Will provisions are necessary in order for the Court to justify departing from the existing circumstances.
When making the Statutory Will the Court will consider the past and present wishes and feelings of the person for whom the Will is being made, including
- any written statement they may have made
- their beliefs and values which may influence their decisions if they had had capacity
The Court will always act in the best interests of the person for whom they make the Will.