The Court of Protection is there to make decisions for people who are unable to deal with their property and financial affairs or their personal health and welfare because they lack mental capacity. The Court of Protection itself can:

• Grant the Orders

• Appoint ‘Deputies’

• Decide whether a person has capacity.

• Make directions relating to financial or welfare matters.

• Remove Deputies or attorneys who fail to carry out their duties.

• Hear cases concerning objections to the Registration of a Lasting Power of Attorney.

It is the Office of the Public Guardian who handles the ongoing administration. Their role includes:

• Supervising Deputies.

• Maintaining a register of Lasting Powers of Attorney, a register of Orders appointing Deputies and a register of Enduring Powers of Attorney.

• To receive reports from Deputies and Attorneys.

•  Investigate complaints against Deputies and Attorneys.

• To report to the Court of Protection.

When a person cannot deal with their affairs due to lack of mental capacity a ‘Deputy’ can be appointed by the Court to act under their authority to deal with the affairs of that person. Usually family or friends of that person will apply to the Court for a Deputy to be appointed.

Any person over the age of 18 can be put forward to be appointed a Deputy, however ultimately it will be for the Court of Protection to decide whether they are suitable and has the necessary skills required to deal with all the matters at hand. There can be two or more Deputies appointed who can be directed to work together or to have different roles by allowing one to make particular decisions.

A Deputy will have to account to the Court at all times. Certain major decisions, such as selling the person’s property, will require the Court of Protection’s permission and each year the Deputy will need to provide a ‘Report’ to the Court. The purpose of this is to provide the Court with information on what the Deputy has been doing on that person’s behalf and so they can check they have been conducting their affairs appropriately. Additionally the Deputy will have to take out a security bond to cover their actions. This bond is payable annually. The more assets they are being given control over, the higher the bond is set. The levels of bond currently range from £0 – £800, however the average fee is £175.

The procedure to apply for a Deputy from the Court of Protection occurs in several stages:

Stage 1:

It must be determined whether or not you need permission from the Court to make the application for deputyship. Where you are applying for a Deputy to be appointed in relation to financial matters only, generally no permission is needed. However, where you are applying for an appointment relating to health and personal welfare, then permission will be needed.

Stage 2:

A registered medical practitioner, psychologist or psychiatrist must then complete the appropriate forms relating to the assessment of the persons mental capacity. This is required, as the Court will not accept jurisdiction to appoint a Deputy unless there is medical evidence.

Some doctors and medical professionals charge a fee for this, which can later be recouped from the funds of the person who lacks capacity.

Stage 3:

You must then complete the rest of the application pack forms which give details to the Court of Protection about the type of order you are seeking, the details of the person who lacks capacity and the details of the person whom you wish to be appointed as Deputy. Additionally you must state whom you will notify of the fact that such an application has been made.

This must then be sent, together with the medical practitioners completed form, to the Office of the Public Guardian in duplicate with an application fee of £400 and an appointment of Deputy fee of £125.

Stage 4:

The Court of Protection will then issue the application. At this point you will have a specified time to serve notice on the people on whom you have to notify of the application. This includes relatives and the person to whom the application relates. Whilst relatives can be informed by post, the person themselves who lack capacity must be informed personally in the most appropriate way possible so that they could understand.

Once this is done you must then send a Certificate of Service to the Court for each person served, notifying the Court that you have fulfilled this obligation.

Stage 5:

The Court will then make a decision and appoint the Deputy or, where there has been an objection, make directions for next steps before confirming a date for a formal hearing on the matter. Official copies of any Order will be sent to you for your records.

This whole process will usually take between 2-3 months in an uncontested case.

All fees relating to applying for a Deputy are payable from the funds of the person to whom the application relates, however in most cases it is likely that the initial fees will have to be paid upfront by the applicant and then have them reimbursed from the estate once the Order has been made.

Urgent and Fast Track Applications:

• Urgent applications – this is where you require the Court of Protection to consider your application within 24 hours or even on the same day. This is where you need an immediate decision to be made because the person may suffer serious loss or harm if not dealt with quickly. This would include:-

• Applications about urgent medical treatment.

• Applications to prevent the person being removed from their residence.

• Application to carry out a financial transaction where the person may not live for much longer.

To make an urgent application you must contact the Office of the Public Guardian and speak with the ‘Urgent Business Officer’ who will discuss the case with you and arrange for the application to be received and placed before a Judge. Where it is necessary to make an application outside of office hours, you can contact the Royal Courts of Justice who can put you in touch with the appropriate person.

Fast-track applications – this is where you need a decision quickly, or where you have already made an application and due to a change in circumstances you need it to be processed faster than usual. The Court will agree to fast-track an application where the person is going to suffer financial loss if action is not taken. This would include:-

• Release of funds to pay for critical medical care

• Allowing a property sale where there is a high immediate risk of loosing a potential buyer.

• Allowing investment of money where there is an important deadline fast approaching.

It is only possible to fast-track an existing application where the Court has already issued the application and you have notified the appropriate people that it is been issued. If this has not occurred then it will be necessary to instead make an ‘Application within Proceedings’ to request an interim Order relating to that particular need.