Court of Protection Guide

As a property and financial affairs deputy, you have the authority to do things such as:

• Pay a person’s bills
• Organise their pension
• Manage their child’s trust fund
• Sell or let out a property or land
• Enter into, or terminate, tenancy agreements
• Take control of any cash accounts and investments
• Receive any income (such as private or occupational pension to which the person is entitled)
• Obtain a grant of probate to an estate to which the person may be entitled (when there is no one able or willing to be appointed)

The powers of a deputy do not extend to dealing with any jointly owned property or land. Further guidance on selling jointly-owned property is provided further below.

When should I apply to be a deputy for property and affairs?

You should apply for deputyship if a person lacks the capacity to make decisions about their property and financial affairs and has not made a valid EPA or LPA. If they have no savings and their only income is from social security benefits, it is not usually necessary to appoint a deputy. In such cases, the Department of Work and Pensions can designate an ‘appointee’ to receive benefits on their behalf.

How many deputies can be appointed?

The Court may appoint more than one deputy. Where there are multiple deputies in place, they can act either jointly (they must act unanimously) or jointly and severally (they can act together or independently of each other).

Will I need to go to court?

The Court will usually make a decision based on the application without the need for a hearing.

Security Bonds

The Court requires all deputies for property and financial affairs to arrange a security bond with an insurer. Security is a type of insurance policy that protects the person who lacks mental capacity in the unlikely event that a deputy misuses their funds. The arrangement is a standard business practice and does not reflect the deputy’s personal integrity. The Court will calculate the level of security according to the value of the deputy-controlled assets. The deputy must pay the premium on the bond before the Court sends out the order to appoint them. The deputy is also responsible for paying an annual premium.

Interim orders

If you need to act before a deputy has been appointed, you can ask the Court to make an interim order. For example, you may need to pay outstanding care home fees.

Costs

See Our Pricing page for more information.

An appointed deputy will make decisions about medical treatment and day-to-day care.

Do I need to make an application?

If a person lacks the capacity to make decisions about their personal welfare, it is not usually necessary to make a deputyship application to the Court. Most care and treatment decisions can be made by those involved in providing care, so long as they are acting in the person’s best interests. The Court will only appoint a personal welfare deputy in the most difficult cases. This might include cases where there is a history of disputes within the family, where a person is at high risk of abuse, or when there is a need to make a series of linked welfare decisions over time.

What decisions can be made without an application to the Court?

The following five principles are usually applied when determining a person’s care or treatment:

1. A person must be assumed to have capacity unless it is established that they lack capacity.
2. A person is not to be treated as unable to make a decision unless all practical steps to help them do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.
4. An act done, or decision made must be done, or made, in his best interests. Section 4 of the Mental Capacity Act consists of a checklist to help the Court or decision-maker determine whether something is in a person’s best interests.
5. Before the act is done, or the decision is made, you must determine whether there is another way to achieve the same outcome in a way that is less restrictive of the person’s rights and freedom of action.

Section 5 of the Mental Capacity Act provides protection for carers, health care and social care staff to carry out certain tasks without fear of liability. This may include personal care or treatment of people who lack the capacity to consent.

Why might it be necessary to apply to the Court for a deputyship?

It may be necessary to apply to Court if:

• The decision is difficult or complex.
• Someone disputes or disagrees with a course of action.
• The decision concerns treatment to which the person cannot consent.
• The person needs ongoing help with decisions relating to personal health and welfare.

Permission to apply

In most personal welfare cases, you need the Court’s permission to make an application. The following groups usually need to obtain permission:

• NHS trusts.
• Professionals.
• Local authorities.
• Family members or friends.
• Advocates, including Independent Mental Capacity Advocates (IMCAs).

The following do not need permission to apply:

• The official solicitor.
• The public guardian.
• The person’s litigation friend.
• Attorneys appointed under an LPA.
• The person alleged to lack capacity.
• Anyone applying for a court-authorised deprivation of liberty.
• A person named in an existing order if the application relates to that order.
• Deputies appointed by the Court (including deputies for property and affairs).
• Relevant person’s representatives (for applications under the Deprivation of Liberty safeguards).

When deciding whether to grant permission, the Court considers the reason for the application, the benefit(s) to the subject, and whether these benefits can be achieved any other way. They will then issue the applicant an order telling them either: permission has been granted, permission has been refused, or a date has been fixed for a hearing of the application for permission.

Application

If permission is granted and the application is complete, the Court issue a stamped application form. Certain people must then be notified about the application. The next steps will depend on what has been asked for in the application, and whether those notified have objected or suggested alternative solutions. The Court will give directions and request any further information required. Once received, the Court will either make its decision or set a date for a hearing if no decision can be made at this stage.

Emergency applications

If someone is at clear risk of serious loss or harm, you can apply to the Court using the emergency procedure. This is only an option when you need an immediate decision, such as:

• An urgent medical treatment.
• To prevent someone from being removed from their residence.
• Where a person who lacks capacity is being unlawfully deprived of their liberty.

In these cases, the Court needs to consider the application within 24 hours.

Attorneys acting under an LPA or EPA have acquired trustee functions in respect of trusts of land. This means that an attorney can act with any continuing trustees in the sale of a property. Where the attorney is the continuing trustee, or the donor is the sole surviving trustee, they can appoint a new trustee. This is conditional upon the following:

1. The donor has a beneficial interest in the trust property at the time that the function is exercised.
2. There is no indication that the donor did not want the attorney to exercise his/her trustee functions.

If you are making an application to appoint new trustees where there is no deputy or attorney, you must consider whether a further application to the Court is required. For example, if the incapacitated person will receive funds from the sale of the property or land, somebody else may need to be appointed by the Court to manage these funds on their behalf.

Any trustees intending to sell land or property (in which the incapacitated person has an interest) to a friend or relative must disclose this in their application and include suitable valuations from reputable local valuers.

You can apply to the Court of Protection if you want to make or change a will on behalf of someone who cannot do it themselves. This is known as a statutory will. It may be that the person has suffered brain trauma or has dementia and no longer has testamentary capacity.

When applying for a statutory will, you need to prove that the person is not able to make a will by themselves. An assessment of capacity form must be completed by the person’s doctor or another medical professional. You should consider their ability to understand the following:

• What making or changing a will means.
• How much money they have or what property they own.
• How making or changing a will might affect the people they know (either those mentioned in the will or those left out).

The following factors will also be considered:

• What are their beliefs and personal values?
• How have they acted and made decisions for themselves in the past?
• What would the person do if they were able to make a will themselves?

If a person dies without a will, their estate will be divided out in accordance with the rules of intestacy. While intestacy rules will be sufficient for many people but won’t be appropriate for others. For example, an individual may have no blood relatives but have two stepchildren that they have always treated as their own. Under the rules of intestacy, the assets of that individual would pass to the Crown rather than the stepchildren. It would therefore be appropriate to apply for a statutory will so that the stepchildren can benefit. A Court may also agree to a Statutory Will for tax planning purposes.

There are strict limits on gift-giving as a deputy or attorney. Unless specified in a court order or LPA, you do not have the right to give gifts as a deputy or attorney. If you want to make a gift, you must ensure that the strict limits are complied with and, where appropriate, a Court order is obtained.

What is a gift?

According to the Office of the Public Guardian, gift giving includes:

• Donations to charity.
• Paying someone’s school or university fees.
• Creating a trust for someone from the person’s property.
• Giving the person’s money or possessions to another person.
• Selling the person’s home to someone at less than market value.
• Living rent-free, or at a ‘friends and family’ rate, in a property belonging to the person.
• Giving someone an interest-free loan from the person’s funds (‘lost’ interest counts as a gift).
• Using the person’s money to buy something for someone else (including you) on a ‘customary occasion.’

When can gifts be made?

Only when you are sure the person can’t make, or help to make, their own decisions about gifts can you decide for them. If you are unsure about a person’s mental capacity, you mustn’t make a gift for yourself or anyone else on their behalf until you have a better understanding of their ability to make decisions. This may mean arranging a mental capacity assessment by a GP or psychiatrist.

By law, appointed deputies and attorneys can only make gifts to:

• A charity.
• A family member, friend, or acquaintance of the person on a ‘customary occasion’ (i.e. a birthday, anniversary, wedding, or religious holiday).

In all cases, the gift must be in the person’s best interests and of ‘reasonable value’ given the size of their estate. This will vary from person to person. To determine whether a gift is reasonable, you should consider:

• If gifts of this nature were given when the person had mental capacity.
• If the gift reflects what the person has said they want to leave in their will.

If the person can afford to make these gifts now, considering their living expenses (now and in the future) and life expectancy.

When may an attorney or deputy need to apply to the Court?

If the above criteria don’t apply, you will need the Court’s permission to give a gift. Unless the deputy order or power of attorney states otherwise, you need to apply to the Court of Protection if you want to make an interest-free loan from the person’s funds or a loan to yourself. Interest-free loans are treated as gifts because the interest you would normally pay counts as a gift. Like other gifts, they have to be reasonable and go to someone connected to the person. If you want to change the limits on the gifts you can give as an attorney or deputy, you also need to apply to the Court of Protection.

Depravation of assets

Deputies and attorneys can’t give a person’s property away as a gift, or spend their money on gifts, to avoid contributing to care home costs. The law calls this deprivation of assets. When local authorities check a person’s assets to see how much they should pay for care, they may include anything you have deliberately given away to avoid paying. You also cannot give things away as gifts to make the person qualify for benefits.

Acting outside of the strict limits governing gift-giving

If you make a gift that goes beyond your powers as a deputy or attorney, the Office of the Public Guardian may:

• Issue a warning.
• Launch an investigation.
• Ask you to pay back money or return the gifts.
• Tell you to apply for ‘retrospective approval’ from the Court.

In serious cases, they may:

• Apply to the Court to have you removed as a deputy or attorney.
• Alert the police (or other organisations that look after the person’s best interests) that you are abusing your position as a deputy or attorney.
• Apply to the Court to have the security bond ‘called in’ (meaning you might have to pay the client back for any money or property they have lost).

Applications for statutory wills or gifts must be separate from other applications to the Court.

All evidence must relate to the person’s capacity to make a will or gift and cannot rely on evidence submitted with a previous application. In the majority of cases, the Court will include the person who lacks capacity as a party to the proceedings and invite the official solicitor to act as the litigation friend. Costs relating to property and financial affairs (such as applications for statutory wills, gifts, and settlements) are usually paid out of the estate of the person who lacks capacity. This is only a general rule, and the Court can make an order for someone else to pay.