Court of Protection

When someone is found to lack the mental capacity to manage their own affairs, they may need support with decision making, either temporarily or in the longer term.

The Court of Protection makes decisions and can appoint a Deputy or Deputies (who act in a similar way to Attorneys) to act on someone’s behalf.

The Court of Protection is a specialist Court, established under The Mental Capacity Act 2005, that deals with the affairs of people who – for various reasons – may lack the capacity to make decisions for themselves.

When the Court appoints a Deputy to step in and make decisions, these fall into two categories:

  • Property and Affairs
  • Health and Welfare

Property and Financial Affairs Deputies can potentially make decisions about all aspects of someone’s finances, including accessing and managing their bank accounts, employing and paying for care, investing their money, buying, selling or letting their property ,and paying for things that the person needs.

Health and Welfare Deputies are able to make decisions about where someone lives, the medical treatment and care they will receive, and all other aspects of their healthcare. They can also make decisions about someone’s day-to-day activities, and even whether contact with certain other people is permitted if they feel that it may negatively impact upon their well-being.

A Deputy could be a ‘lay person’ such as a friend or family member, or a professional such as a solicitor with a specialism in this area, or from the Court’s approved panel of professional Deputies.

Whatever their background, all Deputies have a duty to act in the best interests of the person who lacks capacity. Deputies will have a list of requirements that they must meet as part of their role, this includes accounting annually for every financial transaction and recording decisions made by providing reports to the Office of the Public Guardian.

The Court of Protection can also be asked to make one off decisions, this could be to make gifts, execute a Will on someone’s behalf or make arrangements about a person’s care and where they live.

Our approach

Our team specialises in all aspects of Property and Affairs Deputyships. We can support with applications for the appointment of either a lay or professional Deputy, whether straightforward or contested. We also offer a full Professional Deputyship service.

We understand that the process can be distressing and daunting – you’re dealing with a difficult change of circumstances and trying to do what’s best for the person, whilst supporting your family and taking everyone’s needs into account. On top of this the application process can be lengthy and difficult to navigate, that’s why our expert team are here for you and your family every step of the way.

Client commitment

Appointing a Professional Deputy is something that some people find helpful, you have the assurance of professional, impartial advice throughout, without the stress of being responsible for someone’s finances and property. There are several members of our expert team who can serve as Professional Deputies, should you wish to take this route.

We know that this is a difficult process and one which can feel overwhelming, so it’s reassuring to know that our Court of Protection team are recognised for their friendly, compassionate, and approachable service.

We believe in empowering our clients to be as independent as possible, whilst providing the structure and support they need.

Unfortunately, circumstances may arise where an individual lacks mental capacity to manage their own affairs. This can be for a variety of reasons such accident, injury, or illness, it may also be because they have learning disabilities. If they haven’t already put a Power of Attorney in place for someone to act on their behalf, then the Court of Protection can appoint a Deputy to help them manage their affairs.

A Deputy (or Deputies) is appointed where an individual lacks capacity to make decisions about their property and financial affairs, or health and welfare, or both.

The Deputy’s role is to make decisions in the best interests of the person they have been appointed to represent. Deputies are appointed by the Court of Protection and may be a friend or family member (Lay Deputies), or a solicitor, accountant, or other trusted advisor (Professional Deputy).

The role of a Deputy is split between two categories – Property and Financial Affairs, which covers all financial matters, and Personal Welfare, which cover decisions about medical treatment and care.

To be appointed as a Deputy, you must make a formal application to the Court of Protection. The application will include specific details about the nature of the decisions that need to be made, detailed financial information, witness statements in support of the appointment of a Deputy. All applications also need supporting evidence confirming that the person lacks the capacity to make the decisions covered by the application. The required evidence is a formal capacity assessment known as a COP3, which must be completed by practitioners who are experienced in carrying out mental capacity assessments.

As part of the application, the Court requires the applicant to serve notice of application to at least three people who may have an interest in the application – this will typically include any close family members who are not applying to be Deputies, the person’s doctor, and – if applicable – their social worker. The person who you are applying to be Deputy for also needs to be notified.

Once the application is submitted, the Court will consider the papers. They may ask the applicant to provide additional information or take specific actions before they grant the final order. The Court will then provide a formal Court Order appointing the Deputy or Deputies, this order can then be used as the relevant authority to act on behalf of the individual.

Our Court of Protection team specialise in applications for the appointment of a Deputy and will ensure that your application meets all the needs and requirements that are specific to the individual, whilst complying with the relevant Court process.

If you feel that you may need to apply to become a Deputy, please contact our expert team, who will talk you through the available options and advise you on how best to move things forward.

The benefit system can be complex and frustrating for claimants and family members who are trying to help them. Because of this, we often see people who are entitled to claim, either being awarded the wrong level of benefit, or not claiming at all.

Benefits can – among other things – help claimants maintain their independence, maintain their physical and mental health, and get into work. As such, we believe that it’s important that everyone who is entitled to claim, does so.

Whether it’s understanding the benefit process, knowing what and how to claim or challenging a decision which you have received, we can help.

We can provide you with legal advice on the following:

  • Full benefit review to ensure receipt of correct benefit and possible future entitlement
  • Completion of benefit applications
    Challenge decisions (also known as reconsideration) to the DWP, HMRC and Local Authorities
  • Appeal to First Tier Tribunals
  • Specialist knowledge for claimants who have received payments for personal injury

Our dedicated Court of Protection team are here to provide a bespoke service tailored to each individual’s needs and circumstances.

Our dedicated Court of Protection team are here to provide a bespoke service tailored to each individual’s needs and circumstances.

We understand the emotional strain that families experience when someone loses or begins to lose capacity, whether it’s due to injury, illness, or conditions such as dementia. Our experienced team provide a safe and supportive environment for individuals and their families to discuss their concerns, whilst always placing the individual’s thoughts, feelings, and wishes at the heart of our approach.

We believe in getting to know each client, so that we can better understand their needs, wishes, and circumstances. To do this, we make sure that everyone in our team has a realistic and manageable caseload, this means that they have time to provide the care and consideration that each client needs and deserves. As a result, our team can build a real connection with their clients and their families – this level of rapport and understanding helps us to successfully run the day-to-day management of each individual’s property and finances.

We offer a full Professional Deputyship service, which covers everything needed in terms of property and finances when an individual does not have the capacity to do this for themselves. Whilst some families prefer to act as Deputies themselves, appointing a Professional Deputy to take care of property and finances, gives you time to focus on the person’s health and care needs, without worrying about keeping on top of bills, accounts and dealing with administrative paperwork.

The general management of a person’s property and finances can include:

  • Accessing and managing a person’s bank accounts
  • Liaising with stakeholders such as financial advisers, local authorities, and care providers to provide a holistic service
  • Dealing with care funding decisions
  • Property sales, purchases, and adaptationsReviewing the lifespan of an individual’s funds
  • Preparing and managing a budget and ensuring spending is kept within the individual’s means
  • Investigating financial abuse or previous mismanagement of the person’s affairs

We understand that capacity is fluid, so the role of a Deputy is to assist and support an individual in making decisions. Every client is different, so we tailor our support to their needs and circumstances – we do not have an off-the-shelf solutions.

We work hard to keep the channels of communication open, so that the individual can be involved in the decision-making process as much as possible. There may be some decisions that clients can, with the right support, make for themselves – this approach is actively encouraged by our team who ensure the necessary guidance is in place.

Making decisions involving someone’s property and finances and be stressful– and there is always the potential for disagreements or for those who do not hold the role of Deputy to question decisions. Appointing a Professional Deputy can help avoid this, as they make independent decisions based on their experience and judgement. They can also facilitate difficult conversations, so that the family doesn’t have to.

An example of this is a Professional Deputy refusing a client’s request for extra funds when it is not in their best interest for such funds to be released. A family member refusing such a request could cause conflict and stress between family members. An impartial third-party, like a Professional Deputy, can make these decisions without guilt or causing conflict. This not only helps maintain family relationships at an already difficult time, but means the family are free to focus on the individual’s care needs without worrying about finances.

One issue that Deputies often have to deal with is how gifts are managed. As you would expect, there are strict rules in place to protect individuals that lack capacity and their assets. In most cases, the permission of the Court of Protection is required, and special step need to taken when making gifts.

The Mental Capacity Act 2005, sets out three exceptions as to when a gift can be made without seeking authority, these are:

On occasions such as birthdays or holidays
Gifts to charities that the person supported and may have made themselves
Gifts of reasonable value especially taking into consideration the person’s ’s overall estate

Any gifts that do not fit this description must be approved by the Court of Protection by way of a gift application. It must be shown that the gift is in the best interests of the person and that it would be something that they would have done had they had capacity to make the decision.

Our dedicated Court of Protection Team are experienced in navigating the complexities of gift applications and can assist with advising and preparing the application . We can ensure that your application meets all the needs and requirements that are specific to the individual, whilst complying with the relevant Court process.

The involvement of the Court of Protection and the appointment of a Deputy often comes at a time when families are already dealing with the distress and worry of a person losing capacity. As a result, it’s not unusual for there to be disagreements about who makes decisions about property, finances, and welfare, and how those decisions are made.

Sometimes concerns also arise about the conduct of an existing Deputy and their management of a person’s affairs.

Whether it’s during the application process or at a later stage, the Court of Protection will always act to ensure that the best interests of the individual are being met. Thankfully, most disagreements or concerns can be addressed through careful and considered discussions and mediation with all parties involved, however, where this isn’t possible, the Court can list the matter for a hearing and a Judge will consider all sides of the issue and make a decision.

If a Deputy’s conduct falls below the standards required, the Court can remove them and appoint an independent professional (known as a Panel Deputy) in their place. The Panel Deputy will act in the affairs of an individual to ensure impartiality and that their best interests are met.

Whatever the cause of the disagreement, it is essential that specialist legal advice is obtained from the start to fully understand the options and processes available. As with any litigation, the application and hearings can become complicated and unpredictable, the specialist team at Rothley Law can provide bespoke advice and guide you through the process to ensure the best outcome for the individual.

If you are appointed as a Deputy or Attorney for someone, you have a duty to act in their best interests at all times. Your role is governed by the Mental Capacity Act 2005 and there are five key principles set out in law:

A person must be assumed to have capacity unless proven otherwise
All practicable steps must be taken to help someone make their own decision before they can be treated as being unable to decide themselves
Someone can’t be treated as unable to make a decision simply because they make an unwise decision.

Any act or decision must be made in a person’s best interests
Before anything is done, you must consider whether the same aim can be achieved by something less restrictive of a person’s rights and freedoms

If you are Attorney for someone who can still make their own decisions, you can only act on their behalf with their specific instructions. A person must be allowed and encouraged to make their own decisions as much as possible.

If someone can no longer make those decisions themselves, there is a lot of guidance to support you in how to make decisions for them. The important thing to remember is that you should make decisions in the person’s best interest, with their views in mind, not necessarily how you would make the decision for yourself.

The Mental Capacity Act Code of Practice is a detailed guide on how to support someone who lacks capacity as their representative. In general, when making decisions on someone’s behalf, you should consider the person’s past and present wishes and feelings, their beliefs, and values, and consult with family or friends or those involved in their care.

There are some things you can’t do as an Attorney or Deputy, the main one is to make a Will on someone’s behalf. If someone no longer has capacity and they might need to change their Will or make one for the first time, you might need to consider a Statutory Will through a court application. Read more on that here: Read more (need link).

As an Attorney, what you are and aren’t allowed to do is decided by the original Power of Attorney document. If there are no restrictions, you can make most decisions about property and financial affairs including:

  • Opening and managing bank accounts
  • Transferring money
  • Paying bills
  • Investing money
  • Buying or selling property

Deputy orders are often more restrictive. Deputies are governed by the terms of the order made by the court appointing them, it important to check what you are able to do under those powers before acting as Deputies and Attorneys might have to go to the Court of Protection for additional permissions in certain situations such where there might be added complications or conflicts of interest as:

  • Selling property at an undervalue or to a relative
  • Making significant gifts, or gifts to yourself
  • Selling jointly owned property
  • Deputies are usually much more stringently regulated than Attorneys, and are required to keep statements, receipts, and papers, and file annual reports to the Office of the Public Guardian.

If you are a Deputy or Attorney in need of some specialist advice, feel free to contact our team of dedicated experts in the Court of Protection team.

It is important for everyone to consider making a Will, so that your loved ones are provided for in the way that you want when you are no longer here. Your Will is the way to make your wishes known. If you do not have a Will, your affairs will be distributed under the rules of intestacy.

If you are a Deputy or an Attorney, there is a requirement to consider not only the persons current financial circumstances, but also how their affairs will be dealt with on their death.

Whilst the Deputy or Attorney does not have authority to make a Will for that person, they are required to consider planning for when the person they are acting for passes away.

It’s not unusual to need to change your Will from time to time as your circumstances change – for example, making a new partner or grandchild one of the beneficiaries. If you are appointed to support a vulnerable person who lacks capacity, they may not have a Will at all, their Will may no longer be appropriate, or there may have been some significant changes to their affairs that prompts the need for review of the existing Will.

It may be that the person who lacks capacity to manage their financial affairs, has the capacity to make a Will, and can do this in the same normal way. This is called having “testamentary capacity”, and the legal tests are different to those of having capacity to manage your affairs.

If on assessment, a person is found to lack testamentary capacity, then the Deputy or Attorney can apply to the Court of Protection to authorise them to execute a Statutory Will on that person’s behalf.

A Statutory Will is a Will that is approved by the Court of Protection. An application must be made to the Court and include the following:

  • Details of the person’s wishes and feelings as far as possible
  • Information in support from those who know the person well, this may be friends or family
  • If there is an existing Will, and the application is to change this for some reason, details of why this is necessary
  • The proposed Will

The Court may appoint the Official Solicitor to represent the person to ensure they are fully heard in the process. The application then goes through a Court process, where best endeavours will be met to try and understand what the person would want to do if they were able to make the decision themselves.

The application process can be lengthy and complicated, depending on the circumstances of the individual, their affairs, and their family dynamic. We can advise you throughout the application process and have experience of supporting families through what can be a stressful time.

If you have had a personal injury, you could receive money from a personal injury claim, personal accident insurance, charitable gifts, or other sources. If this is the case, you should consider setting up a Personal Injury Trust.

A Personal Injury Trust is a legal arrangement that enables Trustees (people chosen by you) to hold and manage funds separately from your own. There are a few reasons why you might want to do this, these include:

Maintain your entitlement to some means-tested benefits. You may be unable to work, and your family may have to give up their jobs to provide you with care. Despite this, you will continue to have the costs of living and you may also have the maintenance costs of children and/or dependants. In which case, it is likely that you will still need to access mean tested benefits. By setting up a Personal Injury Trust, you are able to receive your compensation and retain your entitlement to means tested benefits entitlements. Not having entitlement to means tested benefits can also stop you being able to obtain other valuable services such as free prescriptions and school meals for children.

Your compensation can be protected from the cost of care fees. This could be care that you need now or in future. Even if you do not get means tested benefits now, the ability to retain means tested benefits as well as your compensation can be of value to you and your loved ones in the future.

Protection if you divorce. Compensation is paid to you for your benefit. If you divorce, all of your financial resources can be taken into account to determine how assets should be divided. If your compensation is held in a Personal Injury Trust, it is “ring fenced” and could make it easier to argue that the funds should not be included when dividing the pot.

Protection against abuse and vulnerability. You may come under pressure from family or friends to use the funds to benefit others. Your Trustees can help to protect you and your compensation again inappropriate use of your funds.

Safeguarding for the future. Your compensation can be protected for you to meet your needs if at some point in the future, you are unable to look after your compensation yourself. You will have the peace of mind of knowing that your Trustees will look after things for.

It is important that the right kind of Trust is used, and we can give you tailored advice based on your specific circumstances.

We can also provide advice and assistance in relation to Personal Injury Trusts for adults who lack mental capacity and for children. We can assist with the application to the Litigation Court to seek approval for the creation of a Trust in these circumstances as an alternative to a child’s compensation being paid into court.

We provide a professional Trustee service where our experienced team act as your Trustee so that you can benefit from our knowledge and experience. We can provide valuable advice and support when making important decisions so that funds are managed appropriately to protect your long-term interests.

We can provide you with crucial evidence to make sure that all Deputyship or Personal Injury Trust costs are included in your client’s schedule of special damages.

Our reports advise on all aspects of your client’s Deputyship or Trusts costs, not just the past and future Deputy’s annual management fees. We take the time to fully understand your client and their needs together with whatever expert evidence is available. This means we can carefully report on all costs that your client will likely incur. Our experience of acting as Deputy means that we are best placed to fully advise you of what the actual costs are likely to be. This is essential to ensure that your client is properly compensated. Our reports are written by your chosen expert, and we do not delegate this work.

We can also comment on the defendant’s report on Deputyship costs, attend joint meetings with the defendant’s expert and give evidence at court where required.

We can advise on the appropriateness of applications to appoint a Deputy or create a Personal Injury Trust on both personal injury and clinical negligence claims for adults and children. We can make the Deputyship application or draft the Trust, and we can act as Professional Deputy or Trustee where this is in the client’s best interests.

We can provide you with a consultancy service to help you to formulate a plan as to how any interim payments should be applied to meet the client’s needs and assist you to advance the litigation. We provide regular updates and evidence to support progress made, issues that arise, and expenditure against budget. We can supply statements to be used in support of interim payment requests or applications.

Our team has extensive experience of the litigation process and evidential requirements, and we work together to ensure optimum outcomes for our clients.

Because we do not do personal injury or clinical negligence litigation at Rothley Law, we are able to ensure our independence, and truly support you and your client.

If you want or need to sell a property which you own jointly with someone who has lost capacity, they can no longer act to allow the sale to take place. Unless there are very specific circumstances, you will need to apply to the Court of Protection in order to proceed with the sale.

Even if you or someone else is appointed as the person’s Deputy for Property and Financial Affairs, you will still need a separate Order from the Court.

Most people don’t realise that when more than one person owns a property, a Trust of Land is created, meaning that each of the owners is a Trustee. Anyone that owns a property with someone else is a Trustee and may not even realise.

For most people, being a Trustee for property, usually your own, does not affect you and you do not really play an active role. The only time when this will become a problem is when you wish to sell the property that you own with someone else, and that person no longer has capacity to manage their affairs.

If the joint owner has lost capacity, someone will need to act for them as a Trustee. To do this, an application will need to be made to the Court of Protection. The application will ask the Court to replace the person who lacks capacity as Trustee and to appoint someone else. This is known as a Trustee Application and the purpose of it is to allow a sale to take place.

Your property cannot be sold without making an application to Court.

Estate agents will not be able to help you sell your property until the application has been made. Not being able to sell your property may cause financial, practical, or other problems for you and your family.

Our specialist team can also assist you with applications to the Court of Protection where a Trustee has lost mental capacity and has a beneficial interest in any other type of trust. This could be a Will Trust for example.

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Andriy Buniak is very personable, and has a great deal of empathy.

Client

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Lauren Miner is proactive and supportive, and it feels very much like she is someone on our side.

Client

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Rebecca Bristow clearly cares about what she does and balances professionalism with a sensitive human touch.

Client

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I have always been impressed with Lucy Taylor’s down-to-earth and practical approach.

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