Court of Protection – your questions answered
Posted on 29th May 2018
Q: What is the Court of Protection?
A: The Court of Protection (COP) makes decisions about the finances and welfare of people who are permanently or temporarily unable to make decisions for themselves. The COP can:
decide whether someone has mental capacity to make a decision
appoint deputies to make ongoing decisions
give people permission to make one-off decisions
handle urgent or emergency applications
consider applications to make statutory wills or gifts
make decisions about when someone can be detained under the Mental Capacity Act.
Q: What does the COP consider?
A: The COP will first assess someone’s mental capacity; they are usually referred to as ‘the patient’ in court. If the COP confirms that a patient lacks mental capacity, they will then look at the application and decide whether to issue a court order.
Q: What is a deputy?
A: A deputy is someone appointed by the COP to deal with the affairs of the patient.
Q: What can a deputy do?
A: There are two types of deputy who can deal with property and financial affairs or personal welfare. A property and financial affairs deputy will take full control of the patient’s financial affairs; paying debts, applying for benefits or even selling their home to pay for care fees. A personal welfare deputy will make decisions about medical treatment.
Q: Can I apply to be a deputy?
A: Yes. The COP would need to be satisfied that you are fit for the role and it will retain some level of court supervision. You can also apply for ‘one-off’ decisions, but these can be complex and will need to involve anyone who might be affected.
Q: What are a deputy’s responsibilities?
A: You will help someone to make decisions or make decisions on their behalf.
You can’t assume that their mental capacity is always the same, as things can change. The COP order will tell you what you can and can’t do.
Q: Do I have to report to the COP?
A: Yes. As a property and financial affairs deputy, you will be expected to complete an annual account about the decisions you have made, so it’s important to record carefully everything you do.
Q: When does a deputyship order end?
If you can no longer act for the patient another COP application will be needed for a new deputy to be appointed. Otherwise, an order ends either on the death of the patient or if they regain capacity.
Q: Can I be paid for acting as deputy?
A: No. Only a professional deputy can be paid for dealing with financial affairs under a deputyship order. However, you can receive reasonable expenses.
Q: What are the COP costs?
A: There is a £400 fee when you apply to become a deputy. If you apply to become both a property and financial affairs deputy and a personal welfare deputy you will pay the fee twice. If there needs to be a hearing you will also pay a further £500 fee. If you’re a new deputy there will also be a £100 assessment fee. In addition, there is an annual supervision fee ranging from £35 to £320, depending on the level of support needed.
Q: Is there an alternative to the COP?
A: Yes. By putting in place a Lasting Power of Attorney (LPA) you can confirm your wishes for your finances, property and welfare while you have mental capacity. You can choose who you would like to act at your attorney, in the event you should lose capacity. This means that your family and friends know your wishes and can act on your behalf without having to go to the COP.
If you would like more information about LPAs, please get in touch.
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