Court of Protection Guide10 mins read
The Court of Protection are responsible for deciding whether a person has the mental capacity to understand and make decisions for themselves. You may need to apply to the Court if your loved one loses capacity due to sudden injury or illness and doesn’t have a valid Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) in place. The Court has the power to appoint a deputy to make ongoing decisions for someone who lacks capacity. They can give permission for someone to make one-off decisions on their behalf. If there is an LPA or EPA in place, you may still need to apply to the Court to question the validity or function of an EPA/LPA, or to apply for statutory wills, gifts, and settlements.
The law surrounding Court of Protection cases is complex, and the application process may seem daunting at an already difficult time. Our experienced solicitors have put together this guide to help you understand the application requirements, what the Court will consider, and how far your authority as a deputy will extend.
1. Becoming a Deputy
A deputy is someone appointed by the Court to deal with the property, financial affairs, and welfare decisions of a person who lacks the mental capacity to do so themselves. Deputies can only use the assets under their control for the benefit of the person who lacks capacity and must always act in the best interests of that person.
There are two different types of deputyship application:
Property and Finance Deputyship
Personal Welfare Deputyship
2. Changes to Existing Deputyship Powers
The deputyship order will set out what decisions they can make on behalf of the person who lacks capacity. It may also list any decisions that they cannot make. For example, the order might say they cannot sell any property, or it may set a limit on how much money they can withdraw from the bank. If the order does not allow a deputy to make a decision, they can apply to the Court to amend their deputyship, or to ask for a separate order allowing them to make a one-off decision.
Examples of applications for a change of deputyship powers include:
- Change the amount of the deputy’s security.
- Renewing the deputyship where the appointment is time limited.
- Purchasing or selling property (except where the property is jointly owned).
3. Sale of Jointly Owned Property
When two or more people own a property, they are referred to as the trustees of that property. Should a trustee become incapable of managing their affairs, you need to apply for an order to replace them. If you don’t, they will be unable to sign any legally binding documents dealing with the property. Because deputies are restricted from carrying out trustee functions, an application still needs to be made even if a property and finance deputyship is in place.
There are two main categories of application:
- There is an existing and capable co-owner (‘the continuing trustee’).
- The incapable person is the only surviving trustee.
A minimum of two trustees must be appointed to sell a property. A continuing trustee must apply to the Court for permission to appoint a new trustee in the place of the incapable person.
Where the incapable person is the only remaining trustee, you must apply to the Court for an order to appoint at least two trustees in their place. This situation most commonly arises when a property is held by tenants in common and the co-owner is deceased. It is important to note that, unless the executors of the deceased’s estate have been put on the title of the property, they cannot legally deal with its transfer or sale as they are not trustees.
What happens if there are attorneys appointed under EPA or LPA?
4. Statutory Wills and Gifts
Applying for a Statutory Will or Gift
5. How We Can Help
Becoming a deputy is a big commitment and there is a lot to consider when applying to the Court. Kew Law are specialists in Court of Protection cases and have experience working with clients in a range of circumstances. We offer objective legal advice tailored to your situation and can help you navigate the application process. Our priority is to make things progress as smoothly as possible for you. If you’d prefer, we can handle the application for you, saving you time and offering peace of mind. Our solicitors provide a fixed-fee service, so you will know what to pay upfront and can avoid spiralling legal costs. In some cases, we can also act as a deputy for someone who has lost mental capacity.
If you would like to discuss a deputyship application order or set up a statutory will or gift, get in touch to arrange your free consultation.