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Chambers UK January 25, 2017

Court of Protection

Appointing a Court of Protection

If someone lacks capacity (‘the Patient’) and has not drawn up a Lasting Power of Attorney then it may be necessary for a family member or close friend to be appointed as the Patient’s deputy by obtaining a court order from the Court of Protection. Usually a doctor is the person who certifies that the Patient lacks capacity by completing a Court of Protection form after assessing the Patient.

A deputy, or deputies, can be appointed to deal with the Patient’s property and financial affairs and this is the most common type of application. The deputy will be able to manage the Patient’s finances by paying liabilities, managing bank accounts and investments and buying and selling property. The Court order will set out what the deputy can and cannot do on behalf of the Patient. Difficulties can arise, for example, with jointly held property and this may need to be dealt with by way of a separate application to the Court.

A deputy can also be appointed to make decisions in relation to the Patient’s medical treatment or care needs. This type of order can be difficult to obtain and is usually only sought if there is an issue to be determined, for example, there is a dispute regarding the Patient’s living arrangements or care needs which cannot be resolved by any other means.

The application is made to the Court of Protection which is the court that specifically deals with people who are mentally incapable of managing their own affairs or making their own decisions. The application involves completing several forms, providing full financial or medical/welfare background.

If you make an application to the Court of Protection to be appointed as deputy you will need to sign a declaration which sets out your duties. You must declare to the Court that you have the relevant knowledge and skills to be appointed as the deputy and that there is nothing preventing you from being appointed, for example, you are bankrupt or have severe health issues of your own.

An additional type of application is to apply for a Statutory Will on the Patient’s behalf. If someone will die intestate (without a Will) or cannot amend their existing Will due to lack of capacity their estate may not be distributed in a way they would want. A Statutory Will can be put in place to ensure that the estate is distributed in accordance with their wishes, as far as they can be ascertained. This is a difficult application and the Court must always be persuaded that there are grounds for departing from the Patient’s existing testamentary arrangements.

If the Patient may suffer serious loss or harm then the application can be made on an urgent basis. This is usually used if the Court is required to make a decision within 24 hours and examples include the following:

  • Urgent medical treatment.
  • Urgent housing situation e.g. preventing someone from being evicted or removed from their house or care home.
  • To execute a statutory will if the Patient’s life expectancy is very short.

Deputies are often supervised by the Court of Protection and may have to complete annual accounts. The deputyship will be allocated to a category of supervision which ranges from close supervision to a light touch supervision and the deputy’s reporting obligations will depend upon this level of supervision. It is therefore important to keep written records and receipts when acting on the Patients behalf to ensure you have all the information to hand.

The deputy order will come to an end on the Patient’s death, by the deputy retiring from his/her position or by the court order expiring if it is subject to a time limit.

Osbornes Law has a dedicated Court of Protection team made up of Ian Moore, Jenny Walsh and Suzanna Baker. If you need assistance with any Court of Protection matter please do not hesitate to contact us on 020 7485 8811 or fill in an online enquiry form

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