Individual / Wills Trusts & Probate
When someone loses the mental capacity to manage their own affairs and has no lasting power of attorney in place, a family member usually has to apply to the Court of Protection to be appointed as their deputy. Our Court of Protection solicitors in Stockport guide families across Greater Manchester, the North West and nationally through the deputyship process, and can also act as professional deputies where that is the better option.
To speak to our team, call 0161 930 5151, email willsteam@gorvins.com or use our online contact form for a confidential discussion.
The Court of Protection is a specialist court that makes decisions on behalf of people who lack the mental capacity to make certain decisions for themselves, under the framework of the Mental Capacity Act 2005. It can appoint a deputy to manage a person’s affairs on an ongoing basis, make one-off decisions, decide whether someone has capacity, and resolve disputes about a person’s welfare or finances. The person the case is about is often referred to as the protected person.
A Court of Protection deputyship is normally only needed where there is no valid lasting power of attorney (LPA) already in place. If someone made an LPA while they still had capacity, their chosen attorney can usually step in without going to court. It is only once capacity has already been lost, with no LPA, that an application to the Court of Protection becomes necessary. This is the single biggest reason to make an LPA in good time: it avoids the deputyship process altogether.
A deputy is a person appointed by the Court of Protection to make decisions for someone who lacks capacity. As with LPAs, there are two types:
A deputy must be over 18. They act under the supervision of the Office of the Public Guardian, must always act in the protected person’s best interests in line with the Mental Capacity Act 2005 and its Code of Practice, and must keep records and file an annual report. A property and financial affairs deputy is normally also required to take out a security bond, a form of insurance protecting the person’s money, with the amount set by the court.
Deputies are usually close family members or friends, but they do not have to be. Where a person’s affairs are complex, where there is family disagreement, or where there is no suitable or willing relative, the court can appoint a professional deputy such as a solicitor. Gorvins acts as professional deputy in appropriate cases, providing independent, experienced management and continuity for families who would rather not take on the role themselves, or who cannot agree who should.
An application to become a deputy involves completing the court’s forms, including an assessment of the person’s capacity completed by a suitable professional, and giving the court detailed information about the person’s circumstances and finances. Once the application is submitted, the protected person and several other named people must be formally notified and given the chance to raise concerns. The court will then decide whether to make the order and, if so, on what terms.
Errors in the paperwork are a common cause of delay, and the process is genuinely demanding. Having a solicitor prepare and manage the application reduces the risk of rejection and takes a significant burden off the family at what is usually an already difficult time.
A deputyship application is not quick. Where the case is straightforward and uncontested, families should typically allow several months, often in the region of four to six months, from submitting the application to the deputy being appointed, and longer if there are objections or a hearing is needed. In an emergency, the court can be asked to make an urgent interim order.
There is a court application fee, currently £421, payable to HM Courts and Tribunals Service, and you pay it twice if you apply to be both a property and financial affairs deputy and a personal welfare deputy. An additional fee applies if the court orders a hearing. Once appointed, a deputy pays an annual supervision fee to the Office of the Public Guardian, currently £320 for general supervision or £35 where only minimal supervision is required. Fee reductions or exemptions may be available where the protected person is on a low income or certain benefits, and for a property and financial affairs deputyship these costs can usually be met from the protected person’s own funds. Our own fees for handling the application are separate and are set out clearly before we start; for professional deputyship work, what we can charge is fixed by the Court of Protection’s rules. Because fees change, always check the current figures on GOV.UK.
The Court of Protection can also authorise a statutory will where a person no longer has the capacity to make or update a will themselves, and their existing will (or the intestacy rules that would otherwise apply) would produce an unfair or outdated result. We can advise on and prepare statutory will applications, as well as one-off applications to the court such as authority to make gifts, sell property or settle a person’s affairs into a trust. If you also need to plan your own affairs, our will writing team can help.
Gorvins is a Legal 500 recognised firm based in Stockport, advising clients throughout Greater Manchester, Cheshire, the North West and across England and Wales. Every member of our wills, trusts and probate team is STEP qualified or working towards the qualification, and we are members of Solicitors for the Elderly. We are experienced across the full range of Court of Protection work, from deputyship applications for elderly relatives living with dementia, to managing the affairs of people who have suffered serious brain injury, to acting as professional deputy where families need an independent appointment.
Day to day, that experience includes preparing annual reports for the Office of the Public Guardian, dealing with care home fees and care funding, employing carers and support workers, preparing tax returns and applying for statutory wills. We handle each case individually and with the sensitivity it deserves. Where an LPA could still be made because the person retains capacity, we will always tell you, because that is quicker and cheaper than deputyship. To discuss your situation, call 0161 930 5151, email willsteam@gorvins.com or complete our online enquiry form.
A: Anyone over the age of 18 can apply, but the Court will assess their suitability. They will look for someone who has the skills to manage the person’s finances and who will genuinely act in their best interests. This is most often a close family member or friend. Alternatively, a professional deputy, such as a solicitor, can be appointed.
A: The costs are made up of several parts: a court application fee, a fee for the medical capacity assessment, and our legal fees for managing the complex application process. Once appointed, there is also an annual supervision fee paid to the OPG and the cost of the security bond. We will provide a clear breakdown of all anticipated costs from the outset and during the process. These costs can also be assessed by teh Senior Courts Costs Office.
A: A security bond is a type of insurance policy that a deputy must take out before they can act. It is designed to protect the assets of the person who has lost capacity. The cost of the bond depends on the value of the person’s estate and is a yearly expense paid from their funds.
A: No. A Property and Financial Affairs deputyship strictly limits your authority to financial matters. Decisions about healthcare and medical treatment should be made by doctors in consultation with the family, always in the person’s best interests and a Deputyship Order for Helath and Welfare may be necessary if you need to make decisions like this.
A: In a genuine emergency, it is possible to apply to the Court for an ‘interim order’. This grants a deputy temporary, limited powers to deal with a specific urgent matter, such as making a payment to a care home to prevent eviction, while the full application is being processed.
A: If there is a dispute, the Court of Protection will hear from all parties and make a final decision on who is most suitable. In some contested cases, the Court may decide that it is in the person’s best interests to appoint an independent, professional deputy, such as a solicitor from a panel, to avoid family conflict. We have two Panel Deputies at Gorvins.
Wills, Trust & Probate
