Court of Protection Deputyship

The Court of Protection safeguards those who do not have the ability to make their own decisions about their welfare and financial affairs. It can appoint a relative or friend as a deputy to deal with matters on their behalf.

If you have a loved one who is unable to manage their affairs, then you can make an application to the Court of Protection to act as their deputy so that you can make decisions and administer matters for them. You will not be able to manage some of their affairs without appointing a deputy e.g. dealing with their bank accounts.

The role can be time-consuming and sometimes complicated. It is not always straightforward to deal with financial institutions or healthcare providers as a deputy. You will also be required to keep detailed accounts in respect of the patient’s assets and make an annual report to the Office of the Public Guardian.

At Hains & Lewis Solicitors, our Court of Protection lawyers can advise and guide you in dealing with your loved one’s affairs, to include assisting with an application to become a deputy and help with the administrative requirements of the role. We understand how difficult it is when a family member loses the ability to deal with matters and our team will always be sensitive and approachable.

Our services include the following:

• Assistance with the application to become a Court of Protection deputy (including arranging assessment of capacity and dealing with all the notifying requirements)
• Advising you in your role as a Court of Protection deputy and ensuring you understand the relevant Court of Protection rules
• Applying to the Court of Protection for authorisation to sell a property
• Advice in respect of Statutory Wills and applications to the Court of Protection to put a Statutory Will in place
• Dealing with Court of Protection disputes

If you are concerned about a potential future loss of capacity, you can avoid the need for a deputy by making a Lasting Power of Attorney before a person loses capacity. This is usually a much more straightforward option than going through the Court of Protection.

To arrange an initial consultation with our expert Court of Protection solicitors in Southwest Wales, please contact your local Hains & Lewis office in Carmarthen, Haverfordwest or Narberth.

How our Court of Protection solicitors can help you

Applying to become a Court of Protection deputy

If you need to apply to be appointed as a deputy, we can deal with the application to the Court of Protection on your behalf. As well as filling in the relevant forms, we can ensure that all of the required supporting evidence is attached, including a medical assessment of the person’s capacity.

Advice for Court of Protection Deputies

As a deputy, you have a duty to act in the best interests of the person you are representing and to exercise due care and skill. You will need to be able to demonstrate this, so it is important to keep accurate records of all of the financial transactions that you make so that you can justify them if necessary.

You should ensure that the person’s money and property are kept separately from yours.

Each year, you will be required to provide details of the decisions you have made in your role as deputy, to include information about their care and any gifts you have made on their behalf.

The administrative requirements can be difficult to keep up with, so appointing a solicitor to help you deal with the reporting and accounts is essential. We can provide all the advice and guidance you need to do the best possible job for your loved one.

Court of Protection applications to sell property

If it has become necessary to sell the property that belongs to the person for whom you are a deputy, you should check whether there is any restriction preventing this in the deputyship order. If there is, you will need to apply to the Court of Protection for an order authorising the sale.

Even if there is no restriction, it is sometimes advisable to ask the Court for an order, for example if there is a conflict of interest or a risk that someone will object to the sale. You will then be able to show that you have the relevant Court of Protection orders in place giving you full permission.

If the property is jointly owned, a deputy cannot consent to a sale, and it is necessary to apply to the Court of Protection to appoint someone else to consent.

Whatever situation you are in, we can provide advice about the necessary steps and handle the Court of Protection process on your behalf.

Statutory Wills

If the person you represent does not have a Will or has a Will that is out of date, it is possible to ask the Court of Protection to agree to a new Will being made, known as a Statutory Will.

The application process can be quite lengthy, with a substantial amount of supporting information required including details of family members and anyone who might be affected if a Statutory Will is made, a list of all assets and a copy of any existing Will.

Court of Protection Deputy disputes

There is wide scope for a dispute to arise in a deputyship situation, particularly as emotions may be running high within a family. Someone may object to your appointment as deputy or they could allege mismanagement of the person’s assets.

At Hains & Lewis, our solicitors can step in quickly to try and resolve a disagreement before positions become entrenched. We are usually able to reach an acceptable solution without the need for a court hearing.

Your guide to Court of Protection deputyship

What is the Court of Protection?

The Court of Protection is a court that looks after the affairs of those who are not able to manage for themselves, for example, because they have an illness such as dementia or they suffered a brain injury. This can involve appointing a deputy on their behalf.

The Office of the Public Guardian deals with the administrative side of deputyship.

How much are the Court of Protection fees?

Legal fees can vary considerably in relation to such applications. Although the Court of Protection suggest a flat rate legal fee of £950 plus VAT this is often under-estimated. If you would care to contact a member of our team, with details of the application required, and the assets involved, we can then provide you with a more detailed estimate.

In addition to legal costs, there are some disbursements that shall need to be discharged to include a Medical Fee and Court of Protection application fees. These can in due course be discharged from the vulnerable person's assets.

Who can be a Court of Protection deputy?

A deputy must at least 18 years old and not have any financial issues of their own such as bankruptcy or insolvency.

It is important that the person taking on the role understands the amount of work that will be involved before they take up the appointment.

How long does it take to become a Court of Protection deputy?

The application can take between four and eight months to be dealt with by the Court of Protection. The Court may also ask for more information in support of the application, which could make the process longer.

How can you sell your parent’s home if they lack mental capacity?

If there is a restriction on the deputyship order prohibiting the sale of the person’s home, then you will need to apply to the Court of Protection for an order authorising the sale. Even if there is no restriction, it is sometimes advisable to seek the Court’s permission as the buyer’s solicitor may ask to see this.

Can you make a Will for someone with dementia?

When someone has dementia, they may still be able to make their own Will, depending on how much they understand. If they know what assets they have and who might expect to benefit from their estate, they may be able to give instructions for a Will to be made on their behalf.

Where they no longer have testamentary capacity, an application can be made to the Court of Protection to make a Statutory Will on their behalf. This can be useful if the person does not have a Will at all and someone close to them would miss out on inheriting. By way of example, if they have lived with someone for a long time but are not married, the cohabiting partner would not inherit anything if the person were to die without making a Will.

The court application would need to include substantial information about the person’s assets and family. A Statutory Will could also be considered if it offers a tax advantage to the person’s estate.

Can you have a Court of Protection deputy removed?

Where you believe that a deputy is not acting in the best interests of the person they are representing or they are mismanaging or misappropriating their money and other assets, it is possible to report this to the Office of the Public Guardian. If you have a direct interest in the person’s affairs, you can ask the Court of Protection to revoke the deputyship order.

The Court will do this if it believes that the deputy has contravened the powers given to them, the deputy has behaved in a way that is not in the person’s best interests or the deputy proposes to do something that would not be in the person’s best interests.

Speak to our Court of Protection solicitors in Carmarthenshire and Pembrokeshire

To arrange an initial consultation with our approachable expert Court of Protection solicitors in Southwest Wales, please contact your local Hains & Lewis office in Carmarthen, Haverfordwest or Narberth.