Court of Protection

When someone has lost mental capacity and can no longer make important financial or welfare decisions, family members do not automatically have authority to act for them. If there is no suitable Lasting Power of Attorney in place, an application to the Court of Protection may be needed.

Our specialist Court of Protection solicitors can advise whether an application is necessary, prepare and manage the application and deal with complications or objections. We have a number of lawyers with Court of Protection experience, and can also act as professional deputies where appropriate.

We advise on deputyship applications, property and financial decisions, statutory wills, one-off applications and other Court of Protection matters.

When might you need a Court of Protection solicitor?

The Court of Protection deals with decisions for people who lack the mental capacity to make a particular decision themselves.

You may need legal advice where:

• a parent, partner or relative has lost capacity without making a Lasting Power of Attorney;

• you need authority to manage someone's bank accounts, investments or other finances;

• you want to apply to become a property and financial affairs deputy;

• a property needs to be sold to fund care or meet other expenses;

• an urgent financial decision is needed while a deputyship application is pending;

• an existing deputy needs additional powers;

• a significant gift or financial transaction is proposed;a statutory will needs to be made or changed;

• there is uncertainty about whether an existing power of attorney is sufficient;

• a decision is required about somebody's care, residence or medical treatment; or

• there is nobody suitable or willing to act and a professional deputy may be required.

We can advise at the outset whether a Court of Protection application is actually necessary and, if it is, what type of application should be made.

Applying to become a deputy

One of the most common reasons for contacting us is where somebody has already lost capacity without having made a valid Property and Financial Affairs Lasting Power of Attorney.

A family member or another suitable person may need to apply to the Court of Protection to become their deputy.

A property and financial affairs deputy can be authorised to make decisions such as managing bank accounts, paying bills and care costs, dealing with investments and managing property.

The precise powers depend upon the Court order. A deputy should not assume that appointment gives unlimited authority to make every financial decision.

We can manage the deputyship application from start to finish, including:

• establishing whether deputyship is necessary;

• advising who should apply;

• arranging the required evidence of mental capacity;

• preparing the application and supporting evidence;

• dealing with notification requirements;

• explaining the proposed deputy's duties and responsibilities;

• responding to questions or directions from the Court;

• dealing with security bond requirements; and

• advising on the deputy's responsibilities once the order has been made.

Where there are unusual circumstances, substantial assets or disagreement within the family, we can advise on these issues as part of the application.

What if something needs to be done urgently?

A standard Court of Protection application can take time. That can create difficulties where an important decision cannot wait.

For example, money may be needed urgently for care fees, a property transaction may be underway or there may be an immediate need to protect or manage assets.

Depending on the circumstances, it may be possible to seek an interim or urgent order giving authority to deal with a specific issue before the wider application has been determined.

We can assess the urgency, advise whether an expedited or interim application is appropriate and prepare the evidence explaining why the Court needs to act quickly.

Selling property where someone lacks capacity

Property is a common reason why Court of Protection advice becomes necessary.

A house may need to be sold because the owner has moved permanently into residential care, because funds are required to pay for care or because retaining the property is no longer in their financial interests.

Whether an application is needed depends upon who owns the property, whether there is an attorney or deputy in place and the powers they already have.

Our Court of Protection and property lawyers can advise on the authority required and deal with the legal work needed to enable the transaction to proceed.

One-off Court of Protection applications

A full deputyship order is not always necessary or appropriate.

Sometimes the Court is asked to authorise a particular decision or transaction rather than appoint somebody with continuing powers.

We can advise on applications involving matters such as:

• particular property transactions;

• significant gifts;

• financial arrangements outside a deputy's existing authority;

• proposed transactions involving family members;

• changes to existing deputyship arrangements; and

• other decisions requiring specific Court approval.

We will consider whether a focused application may be more proportionate than seeking wider ongoing powers.

Statutory wills

If someone lacks the mental capacity to make or change their own will, an application can be made to the Court of Protection for authority to execute a statutory will on their behalf.

This may be appropriate where, for example, the person has never made a will, their existing will no longer reflects their circumstances, their assets have changed substantially or people who would now reasonably be expected to benefit are not adequately provided for.

Statutory will applications require careful evidence and consideration of the person's wishes, feelings, relationships, assets and wider circumstances.

We can advise on whether an application is appropriate, prepare the application and supporting evidence and deal with the Court process.

Professional deputy services

There are circumstances where appointing a family member as deputy is not practical or appropriate.

This may be because:

• there is no suitable family member available;

• the assets or financial arrangements are complex;

• substantial compensation or other assets need to be managed;

• there is disagreement within the family;

• significant financial decisions will need to be made over a long period; or

• the Court considers professional management appropriate.

A specialist solicitor may be able to act as professional deputy, taking responsibility for managing the person's property and financial affairs within the authority granted by the Court.

We can advise whether professional deputyship is appropriate and explain how the arrangement, responsibilities and costs work.

What does a deputy have to do?

Becoming a deputy creates ongoing legal responsibilities.

A deputy must act within the authority given by the Court and make decisions in the person's best interests. Depending on the appointment, this may involve keeping financial records, managing money and investments, paying expenses and care costs and reporting to the Office of the Public Guardian.

Some decisions may require additional authority from the Court.

We advise deputies who are uncertain about the extent of their powers or who need approval for a decision that falls outside their existing order.

What if there is disagreement about the application?

Not every Court of Protection matter is agreed.

There may be disagreement about whether someone lacks capacity, who should act as deputy, how their finances are being managed or what decision is in their best interests.

Taylor Rose has specialist lawyers who deal with contested Court of Protection matters as well as lawyers handling non-contentious applications.

Where a dispute develops, we can advise on the legal and practical options and represent parties in Court proceedings where necessary.

How we can help

Court of Protection applications can involve detailed forms, medical evidence and procedural requirements. More importantly, the order needs to give you the authority actually required to deal with the person's circumstances.

Our lawyers can:

• assess whether a Court of Protection application is necessary;

• advise on alternatives where an application can be avoided;

• advise who should make the application;

• identify the powers that should be requested;

• prepare deputyship applications and supporting evidence;

• arrange or advise on capacity evidence;

• deal with Court and notification requirements;

• respond to questions or directions from the Court;

• make urgent or interim applications;

• advise on property sales and significant financial transactions;

• apply for additional powers for an existing deputy;

• prepare statutory will applications;

• advise existing deputies about their responsibilities;

• provide professional deputy services; and

• work with our disputes lawyers where an application becomes contested.

Our aim is not simply to complete the Court paperwork. We consider what authority is actually required, anticipate issues which may delay the application and help put workable arrangements in place for the person whose affairs need to be managed.

How long does a Court of Protection application take?

Timescales vary significantly according to the type of application, the evidence required, whether anybody objects and the Court's workload.

A straightforward deputyship application will normally take a number of months rather than weeks. More complex or contested cases can take longer.

If something genuinely cannot wait for the main application to be determined, we can advise whether an urgent or interim application should also be made.

How much does a Court of Protection application cost?

The cost depends upon the type and complexity of the application and whether it proceeds on an uncontested basis.

There may also be Court fees, fees for obtaining capacity evidence and other third-party costs.

For many standard applications we can give you a clear indication of the likely legal costs at the outset. If complications arise or additional Court work becomes necessary, we will explain the likely cost implications before undertaking significant additional work.