“Protecting your future
and those you care about”
The Court is the ultimate authority responsible for ensuring the protection of the property, savings and welfare of persons who lack capacity to manage and look after their own affairs.
Very broadly, capacity is an individual’s understanding and insight affecting their ability to make decisions, by weighing up the pros and cons, before deciding on a course of action. The law recognises that the many different things an individual might have to make decisions about, will require different levels of understanding and insight (capacity) depending on their importance. Just because an individual lacks capacity in one area, for example finance, does not automatically mean they lack capacity in other matters, for example residence. The law seeks to be least restrictive on an individual, allowing the individual as much freedom to order their own lives as possible but always subject to considerations of the safety and well-being of the individual and others. The concept of capacity is therefore a moveable feast and tailored to the individual.
Where, by reason of a dementia or other mental health issue, an individual (the patient) is shown to lack general capacity to manage and order their own affairs, then the Court will make an Order appointing someone called a deputy to look after the patient’s property and financial affairs and to stand in that individual’s shoes in making decisions which the individual cannot make for themselves.
In short, anyone, providing they are a responsible adult. Most often the deputy will be a relative or close friend, but sometimes a professional person such as a solicitor will be appointed.
There is usually just one person appointed as deputy but the Court will consider and allow two people to be joint deputies where the circumstances make this desirable.
A deputy must act in accordance with the Order appointing them. This defines the extent of their authority. Generally, the Order will allow the deputy to receive the patient’s income, such as their pensions and to pay their household and other bills including any care expenses they may have. If the patient enters long term care, then the deputy will be able to sell the patient’s home and furnishings. The deputy must always act in the patient’s best interest.
No. It is very rare for the Court to appoint a deputy to look after the patient’s welfare, and there must be a pressing and immediate decision which is needed before the Court will consider allowing this. The Court can make specific decisions, for example whether an individual should have a particular course of medical treatment or an operation, or reside in a particular type of care home.
The deputy must complete a range of forms and present them to the Court with the requisite fee. The application forms require information to be given in a good amount of detail about the patient’s immediate history, his or her savings, property and income as well as his or her bills and outgoings, the patient’s family and friends and the patient’s care arrangements. A capacity assessment has to be provided in the prescribed form, so as to confirm the incapacity. Notice of the application has to be served on the patient. The application will also require information to be given about the person applying to be deputy.
The Court will supervise the deputy. The deputy will have to submit to an annual audit which is undertaken by the Office of the Public Guardian.
The Court will consider and make Orders on any applications made by the deputy asking for authority to take action on the patient’s behalf which is beyond the scope of their usual authority. For example, to make gifts out of the patient’s savings or to make a Will for the patient.
The Court will also rule on issues which are disputed or where it is unclear which particular course of action might be in the patient’s best interest. The Court will hear evidence and consider submissions from experts before reaching a verdict.
The Court fee is £385. The cost of the medical certificate will vary, but a budget of £200 would not be unreasonable. You will be asked by the Court to take out an insurance to guarantee that you act properly with the patient’s money and property, but the cost of this will vary depending on the value of the patient’s estate. You might budget up to £500, but it could well be less. Our fees for acting in the application (providing matters are straightforward) would be £1,140 including vat, and these are fixed by the Court.
Where an individual has lost mental capacity to manage their own affairs, has not made a Will, and now lacks the capacity to be able to do so, with the consequence that the individual would die intestate (so that his or her estate would be inherited by the relatives specified by Statute) then an application can be made to the Court of Protection for a Will to be made on their behalf. A good deal of information would have to be given to the Court about family, friends and interests as well as the size and nature of the estate likely to be left. The Court will then consider how the individual might have wanted to arrange and leave their estate and affairs.
Only if the patient made a Lasting Power of Attorney whilst still having mental capacity to be able to do so.
If all goes well, then twelve weeks or thereabouts after the application has been submitted to the Court.