Deputyship and the Court of Protection

Michael Culver TEP CTAPS

Associate Solicitor and Team Leader

MichaelCulver@boltburdon.co.uk

020 7288 4741

07833 239187

What is the Court of Protection (COP)?

• Special Court that only deals with financial and welfare matters of people who lack capacity.

• Same powers in relation to mental capacity issues as the High Court

• Separate from Office of Public Guardian (OPG)• COP makes decisions• OPG ongoing supervision

– Governed by Mental Capacity Act and code of practice

Type of orders court can make

• Various orders but by way of example:– appointing someone to look after a person’s finances (known as

deputyship)– Health and Welfare Deputies only very rarely appointed – deciding where a person might live– deciding what contact, if any, a person is to have with specified persons– deciding whether a person is being deprived of their liberty– deciding whether an enduring or lasting power of attorney is valid– making a Will for a person who lacks capacity – statutory will.– Inheritance tax planning for a person who lacks capacity – including

making gifts

When to make an application

• No EPA or LPA and P (person involved) lacks capacity to manage their affairs – COP application for a Deputy to be Appointed

•Disagreement regarding a serious decision that cannot be resolved in any other way – COP application

•Urgent applications are possible but must be genuinely urgent i.e. P is at immediate risk  

How do I make an application?

• Application forms– COP1 – details of application– COP1a – details of the person to whom the

application relates– COP3 – capacity assessment – Red & Yellow /

GP– COP4 – proposed deputy ‘undertakings’– Service of Application on P – Service of order on P– Security Bond required

Appointing a Deputy• If the Court is satisfied that P cannot manage their finances then a Deputy order will

be made• This will appoint someone to act on P’s behalf to manage their financial affairs • Who can be a Deputy:

– Anyone over 18 but usually a close relative, solicitor, accountant or Trust Corporation.

– Paid Carers should not agree to act due to possible conflict of interest – Can appoint more than 1 and if so they can be appointed Jointly or Jointly and

Severally

Appointment ends on soonest of:

Subsequent Court Order;

P ‘s death;

Deputy losing capacity or ability to act;

Deputy’s death.

Deputy PowersLimited to the terms of the Court order but often include power to sell the property, power to change, move, alter investments, power to deal with pensions and other forms of income.

Gifts? Limited power to make gifts – usually only seasonal gifts consistent with what P did before losing capacity and of a reasonable size in comparison to their overall estate

Will? – no authority to consider P’s Will but may need to do so to establish if a statutory will application should be made and in considering what assets to sell etc – may need authority from the Court to obtain a copy of this

Must always act in P’s best interests, must follow the Statutory principles, follow guidance in the Code of Practice and only make decisions on topics Court has authorised

Duties of the Deputy

• Act with due care and skill – seek guidance • Not take advantage of their situation (gift to themselves for instance

or not buy property from P’s estate, accept third party commissions) • Indemnify P against negligence actions from third parties • Not delegate – can seek advice but must make decision themselves• Act in good faith • Respect confidentiality • Comply with Court directions • Keep accounts • Keep persons money and property separate from their own

finances.

Supervising Deputies

• OPG – supervises and supports Deputies• Any suspicion of Financial Abuse

investigated by OPG • Other forms of Abuse by police/social

services

Panel deputies

• COP Panel of Professional Deputies • Appointed where:

– There is a family dispute, – The attorney or deputy has acted improperly or

without due care– Court not satisfied applicant is capable – There is no one willing or able to act as a Deputy

Any Questions?

Bolt Burdon Solicitors

Please contact me with enquiries and signpost to:

Michael CulverE: michaelculver@boltburdon.co.uk T: 020 7288 4741