The Court of Protection & Deputyship - the Facts

The Court of Protection (CoP) is often criticised in the media as a “Secret Court” that makes sweeping decisions about peoples lives. Even the name has an Orwellian ring to it. However, while its remit is wide, most people encounter it if they have to make a “Deputyship” application.

What is Deputyship?

A Deputy is a person (or persons) appointed by the Court of Protection to take decisions of behalf of another  who cannot themselves, and who does not have a valid Lasting or Enduring Power of Attorney in place. The appointment can cover property and financial affairs, but also health and welfare matters. These could include decisions about where that person lives, what they wear or eat and  medical treatment. 

However, the Court of Protection is reluctant to appoint welfare Deputy’s. On average 375 applications are approved per year compared to 15,000 property and finance applications. This is partly because the law allows some welfare decisions to be taken without this or other authority.

Is the CoP as sinister as the press says?

Bluntly, no. Contrary to reports, families are not routinely excluded from its processes. Indeed, family members usually start proceedings in the Court and others can have the right to be notified and become involved. Sometimes matters are dealt with behind closed doors, or reporting restrictions imposed, but only with good reason. This is the same across the Court system.
 
However, it is fair to criticise it for the slow pace it works, its bureaucracy and high fees, all of which mean it is best to avoid having to approach it if possible.

If a Deputyship application is necessary, a number of long forms must be completed and a formal assessment of the mental capacity of the subject of the application obtained. Providers often charge a fee of a few hundred pounds for these. Upon receipt, the Court of Protection then processes the application, but this takes many months (sometimes over a year) even in the simplest of cases. It can also ask for additional information, or steps to be taken, which slow down applications further. Meanwhile, it is not possible to take financial decisions for the subject. Their assets are in limbo. It might not be possible to take healthcare decisions either.

Once appointed, a Deputy has to prepare regular accounts of their dealings and put in place an insurance bond to cover misconduct/negligence by them. A premium for this is due annually and, again, usually runs into hundreds of pounds. They may also have to seek further Court Orders to do certain things, for example, sell a property. Such applications incur more costs and take time.

There are also fees payable to the Court of Protection when making any application (£371) and annual  supervision fees for a Deputy (usually £320). These are in addition to any legal fees that a Deputy may incur and which are paid from the subjects assets, as are the premiums for the insurance bond.

What if I have no family?

The Court of Protection has the power to appoint a professional Deputy to act if there is no one else appropriate who can. While this might not seem too concerning, would you really want a stranger making financial (and possible health and lifestyle) decisions for you?

How to keep things simple, minimise cost and avoid the CoP

The easiest way is to prepare Finance and Health and Welfare Lasting Powers of Attorney sooner rather than later so that these are in place if needed. With these, the costs and stress of a Court of Protection application can be avoided and you choose who will take decisions for you if needed.

If you would like further information on making Lasting Powers of Attorney ,or if you do need to make a Deputyship or other Court of Protection Application please contact Edward Pennington at DPM Legal. Call 01483 521597 or email Edward.Pennington@dpmlegal.co.uk