Helping you support your loved ones
If a loved one has lost the capacity to manage their own affairs, it can be highly distressing, both for them and the people who care about them. Becoming a Court of Protection deputy can allow you to help a vulnerable person make important decisions about their property, finances and welfare, ensuring their needs are met and giving you peace of mind.
Our Lasting Powers of Attorney solicitors in Wakefield and Ossett can assist you with the entire process of becoming a deputy and discharging the duties involved with your deputyship. We can also act as professional Court of Protection deputies where required and offer advice and support for resolving Court of Protection disputes.
With our experience and expertise, we can make sure your application to become a Court of Protection deputy goes ahead as quickly as possible, while keeping the process as straightforward and stress-free as we can for you and your loved one.
Becoming a Court of Protection deputy
There are two types of Court of Protection deputyship you can apply for:
- Property and Financial Affairs Deputyship
- Personal Welfare Deputyship
Property and Financial Affairs Deputyship
This can allow you to assist a vulnerable person with decisions related to their money and property, including:
- Managing their income (including state benefits)
- Dealing with their savings and any other cash assets
- Managing any investments they have
- Paying bills, including any care costs
- Managing or selling their home or other property
Personal Welfare Deputyship
This can allow you to assist a vulnerable person with decisions about health and welfare decisions, including:
- Medical treatment
- Where they live
- Who has contact with them
- Their care needs
An application to the Court of Protection to be appointed as the Deputy for a vulnerable person or for an order relating to their health and welfare will only usually be appropriate where there is a need for a specific decision to be made and a disagreement about what is in the vulnerable person’s best interests.
Common questions about court of Protection Deputyship
General Court of Protection FAQs
What does the Court of Protection do?
The Court of Protection was set up under the Mental Capacity Act 2005 to protect the rights and interests of people who lack mental capacity.
The Court’s powers include:
- Assessing mental capacity
- Making one-off decisions for people on financial and welfare matters
- Appointing Deputies to make decisions on another’s behalf
- Making Statutory Wills for people who cannot make a Will themselves
- Hearing urgent and emergency applications where an immediate decision needs to be made for someone (such as to consent to medical treatment)
- Ordering the sale of jointly owned property
- Making and hearing challenges to Deprivation of Liberty Orders
- Hearing challenges to the registration of Enduring and Lasting Powers of Attorney
How long do Court of Protection applications take?
It varies depending on factors such as the type of application you are making, the complexity of your case and whether anyone challenges your application.
For example, for straightforward Deputyship applications, the application process usually takes around 3-4 months.
We can provide further advice on time estimates and how long your Court of Protection application could be expected to take.
How much does the Court of Protection cost?
The general application fee for Court of Protection applications is £365 (or £465 where there needs to be a hearing).
There are other types of fees depending on the type of application you make. For example, for Deputyship applications, once your application is approved, you will also have to pay an annual supervision fee of £320 (or £35 for Deputies managing estates of less than £21,000) and a one-time assessment fee of £100. However, it is usually possible to claim these extra costs from your loved one’s estate.
We can provide detailed advice about how much your Court of Protection application is likely to cost at the beginning of your case so you can proceed with full control over your spend.
Court of Protection Deputy FAQs
What is a Court of Protection Deputy?
A Court of Protection Deputy is someone authorised to make decisions on behalf of a person who lacks the mental capacity to make their own decisions.
There are two types of Court of Protection Deputy:
- Property and Financial Affairs Deputy – to do things like manage a person’s bank accounts, pay their bills, collect their pension and benefits, and sell their property
- Personal Welfare Deputy – to make decisions about things like a person’s care, medical treatment, and day-to-day activities
A person can either be one type of Deputy or both kinds. However, the Court will usually only appoint a Personal Welfare Deputy if there are concerns about whether a person’s loved ones can make decisions in their best interests (for example, if there are family disagreements about their care).
Why do you need to become a Court of Protection Deputy?
If you need to support a loved one, it might be surprising to know that unless you have legal authorisation, you will probably be prevented from making important decisions.
For example, if you need to manage someone’s bank accounts, banks will not deal with anyone but the account holder without legal authorisation. If your loved one did not make a Lasting Power of Attorney appointing you as an Attorney, a Court of Protection Deputyship Order is the authorisation you need.
How do you become a Court of Protection deputy?
There are a number of forms and other documents that need to be filled in when applying to the Court of Protection to become a deputy. It is important to make sure all of these documents are filled out accurately to ensure there are no delays and to avoid the risk of your application being rejected due to basic errors.
The documents you need to fill out and submit to the Court of Protection include:
- An application form
- An assessment of capacity form (recording an independent medical expert’s option of your loved one’s mental capacity)
- A deputy’s declaration (explaining your personal and financial situation and how you would make decisions for the subject of the application)
- An information form (describing the decisions you will need to make on behalf of your loved one)
Our Court of Protection lawyers can guide you through the entire application process, ensuring you are able to secure your deputyship quickly and efficiently so you can start supporting your loved one as soon as possible.
Who can be a Court of Protection Deputy?
As long as you are aged over 18, you will normally be able to apply to become a Court of Protection deputy for a family member or friend. Solicitors can also act as professional Court of Protection deputies if required.
It will be up to the Court to decide if you are a suitable person to act as someone’s deputy. They will typically consider how closely connected you are to the person who needs a deputy and your ability to carry out the required duties when making their decision.
If you have been declared bankrupt the court will consider the circumstances of this when considering if you are a suitable person to manage another person’s finances.
When can you apply to become a Court of Protection deputy?
You can apply to the Court of Protection to become someone’s deputy if they are judged to lack the mental capacity to manage their own affairs and if they are considered to have assets and/or medical or personal care needs that they need assistance with.
A person may be deemed to lack mental capacity if they are unable to:
- Understand important information required for an informed decision
- Retain the relevant details for long enough to make an informed decision
- Evaluate the key details required to make an informed decision
- Communicate their decisions effectively to the necessary people
Circumstances where someone may be considered to require help to manage their affairs include:
- They have a property that needs to be sold
- They have more than £16,000 in savings
- They have a significant regular income
- They have a specific medical issue that needs treatment
- Their care needs have changed and decisions need to be made about their future care
What does a Court of Protection Deputy do?
Deputies have powers to act within the scope of the Deputyship Order drafted by the Court. They are authorised to make decisions on behalf of someone if they lack the capacity to make their own decision at the time it needs to be made.
Deputies have strict duties to act in certain way. For example, they have a duty to:
- Act in the best interests of the person for whom they are making decisions
- Act with due care and skill
- Not to take advantage of the person
- Not to delegate their duties to someone else
- To act in good faith
- To respect the person’s privacy and confidentiality
- To comply with the Court of Protection’s directions
Financial Affairs Deputies also have duties to keep and file accounts and to keep the person’s money and property separate from their own.
What can’t a Court of Protection Deputy do?
Deputies must not make a decision for someone if they are able to make it themselves. The Deputy should try to help the person make their own decision as far as possible, even if the Deputy disagrees with the decision made
Deputies cannot make a Will on behalf of someone who lacks mental capacity. They must also be careful not to restrain the person for whom they are making decisions or unlawfully restrict their liberty.
Deputies do not have the freedom to make all decisions without restriction. Some decisions that a Deputy may need to make have to be approved by the Court of Protection
We can provide advice on the limits to your Deputyship powers and ensure you are able to carry out your role fully in line with the Deputyship Order and your other legal duties.
Statutory Will FAQs
What is a Statutory Will?
The Court or Protection can make or change a Will on behalf of someone who lacks the mental capacity to do it themselves.
The ability to make a Will is called ‘testamentary capacity’. A person lacks testamentary capacity if they do not understand:
- What making a Will means
- How much money or property they own
- How making a Will may affect certain people such as:
- People mentioned in the Will
- Anyone left out of the Will
- Anyone who might otherwise inherit if the person died intestate (without making a Will)
Just because someone might struggle to make decisions about their finances does not mean they lack testamentary capacity and they may still be able to express their wishes to make a Will. We can help you assess whether your loved one is able to make a Will or whether you should make an application to the Court of Protection.
The Court of Protection will only make a Statutory Will where it is in your loved one’s best interests and they will put significant value on their known wishes and feelings.
Why make a Statutory Will for someone?
If a person dies intestate, their money and property will not be distributed according to their wishes but according to a law called the Rules of Intestacy. Under the Rules, only specific people can inherit, such as spouses, civil partners ,children and potentially more distant blood relatives.Unmarried partners and step-children cannot inherit.
A Statutory Will can ensure that your loved one’s wishes and values are respected after they pass away and that they are not prevented from fulfilling their final wishes simply because of an illness or injury.
Statutory Wills can also be useful for other purposes such as:
- To reduce someone’s liability for Inheritance Tax
- To change a Will that is out of date (for example, because one of the beneficiaries has died)
- To reflect a significant change in value of the estate (for example, because the person received compensation)
Who can apply for a Statutory Will?
It is usually someone with the authority to make decisions on behalf of the person lacking mental capacity who makes the Statutory Will application – an Attorney under a Lasting Power of Attorney or a Court of Protection Deputy.
It is important to remember that that Attorney or Deputy cannot make a Will on behalf of their loved one without making an application to the Court of Protection, despite having legal authorisation to make other decisions.
How do I make a Statutory Will?
You must complete and submit a number of forms along with supporting documents to the Court of Protection:
- An application form
- A witness statement
- An information form
- An assessment of capacity form
Supporting documents you must provide include:
- A copy of your loved one’s existing Will (if there is one)
- A copy of the proposed new Will
- A copy of your Deputyship Order or Lasting Power of Attorney
- Details of the executors who will administer the estate after your loved one has died
- Your loved one’s family tree
- Reasons why the beneficiaries included in the Will might expect to benefit
- Your loved one’s address or details of where they live (such as a care home)
- Details of your loved one’s assets
- Accounts showing your loved one’s estimated income and outgoings
- Details of any Inheritance Tax your loved one’s estate may become liable for after they die
The Court will consider all the evidence then make a decision in your loved one’s best interests about whether to make a Statutory Will.
Because of the complexity of the application process, it always helps to have an experienced solicitor by your side to help you collate the information and ensure it is accurate.
Mental capacity FAQs
What is mental capacity?
Mental capacity is defined under the Mental Capacity Act 2005. A person lacks mental capacity when they have an illness, disability or condition that means they cannot:
- Understand information provided to them about a particular decision
- Retain that information for long enough to make the decision
- Weigh up information to make the decision
- Communicate their decision, either verbally or through other means such as sign language
Mental capacity can fluctuate, meaning it must be assessed separately for each individual decision. For example, a person may be able to decide what to have for breakfast but cannot decide whether to move into a care home.
How do you assess mental capacity?
The Mental Capacity Act outlines a two-stage test to assess capacity:
- Does the person have an impairment of the brain or mind, whether it is because of an illness or other factor such as injury or substance abuse?
- Does the impairment mean that the person is unable to make a specific decision when they need to (using the four indicators above)?
There are five principles that must be taken into account when assessing someone’s mental capacity to make a particular decision:
- Always assume that a person has mental capacity until proven otherwise
- Do not decide that someone lacks capacity until you have taken all practicable steps to help them make the decision
- A person many not be incapable just because they make an ‘unwise’ decision
- Always make decisions in a person’s best interests
- Before making a decision on someone’s behalf, always consider whether there is a less restrictive way to achieve the same outcome
Who decides whether a person lacks mental capacity?
When you apply to become a Court of Protection deputy for a loved one, you will need to have them assessed by an independent medical expert to establish whether they truly lack the mental capacity to manage their own affairs.
After this, a specialist Court of Protection judge will make the ultimate decision over whether your loved one has mental capacity or not, based on the independent medical expert’s assessment.
It is often the case that someone may be found to lack mental capacity in some ways, but not others – for example, being unable to understand or manage their finances, but being clear about whether they wish to stay in their home or not. A judge will take this into account when deciding what type of Court of Protection deputyship it is appropriate to issue.
Why choose Thornton Jones’ Court of Protection solicitors in Wakefield, Garforth, Ossett and Sherburn in Elmet?
Our Court of Protection solicitors have been supporting individuals and their families to support vulnerable people for many years. We understand the importance of providing sensitive, practical legal advice and guidance so you can have peace of mind that everything is being taken care of correctly to ensure you loved one’s needs are met.
Every Thornton Jones client receives the support and attention of a senior member of our team – a service most larger firms cannot match. As a result, our team can guarantee you the very best expertise and client care, helping you to quickly and efficiently find the right legal options for you.
We are regulated by the Solicitors Regulation Authority (SRA) providing assurance that we continually meet the highest legal and professional standards.