Court of Protection Solicitors

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• How our Court of Protection solicitors can help you
• How to decide what is in a person’s best interests
• Court of Protection costs & legal fees
• Our Court of Protection Team

Our Court of Protection team is headed by Samantha Buckthought. Samantha is one of only about 70 Panel Deputies in England and Wales able to act as a professional Deputy where there is no one willing or able to carry out the role.

To become a Panel Deputy, professionals must undergo a rigorous selection process and show that they meet all the Deputy standards when managing their cases. The Court of Protection will refer cases to Panel Deputies when there is no-one willing or able to act for a person.

Our experienced team carry out the day to day work, although the responsibility for decisions rests with Samantha as the appointed Deputy. The team prides itself on being client focused and caring and having a large team provides a wealth of experience.

How our Court of Protection solicitors can help you

Applying to become a Court of Protection Deputy

We assist those who wish to apply to be appointed as a Deputy for Property and Affairs and/or Health and Welfare. This service is normally conducted for a fixed fee.

We will prepare the application forms and deal with the application on your behalf. When the Order appointing you as Deputy is received from the Court of Protection, matters are then handed back to you to deal with the day-to-day management of the person’s affairs.

The Court of Protection usually authorises the appointed Deputy to pay all fees from the estate of the person that lacks capacity.

Acting as a Professional Deputy

We can apply to the Court of Protection for our Panel Deputy Samantha Buckthought, to be appointed as Deputy for property and financial affairs. She currently acts as Deputy for many clients, each of whom lacks capacity in varying circumstances.

Samantha has an experienced team who manage the day-to-day financial affairs for clients. Samantha Buckthought is a Partner and one of a small number of Panel Deputies in the South West appointed by the Office of the Public Guardian.

She currently acts as Deputy for many clients, each of whom lacks capacity in varying circumstances; for example:

• Elderly clients
• Clients with head and brain injuries
• Clients with learning disabilities
• Clients with mental health problems
• Clients with compensation settlements following litigation
• Clients living in care homes or in the community
• Isolated clients and clients without relatives or with estranged families

Advice for Court of Protection Deputies & Attorneys

Our Court of Protection solicitors provide advice and assistance to help you in the initial stages of the Deputyship or acting as an Attorney. This can include registering the Court Order appointing you as Deputy, help with setting up accounts and records and providing advice on health and social care funding. This will usually be for a fixed fee.

One-off Court of Protection applications

We can assist with one off applications to the Court of Protection. For example, applications to sell property, to appoint trustees and to make gifts. We also provide ad-hoc advice to existing Deputies in relation to their role. This could include assisting with annual reports, complying with other obligations, and best interests meetings including representing you.

For a fixed fee; clients can opt for our retainer service, in which we assist with or control certain day-to-day roles of the Deputy and be on hand to support the Deputy wherever necessary.

Contested Court of Protection applications

Conflicts can sometimes arise when an application is made to the Court of Protection, whether this is for someone to become a Deputy or to deal with a one-off matter (such as selling a vulnerable person’s home).

These conflicts typically centre on disagreements about what is in the best interests of the vulnerable person in question and can become very complicated and heated if the right approach is not taken.

Our Court of Protection solicitors can assist with both contesting and defending Court of Protection applications. Wherever possible, we will seek an amicable solution, but at all times, we will ensure the best interests of the vulnerable person are protected.

Making a Statutory Will

If a person does not have the mental capacity to make a will, then in order to make or change a Will, you can apply to make a Will on their behalf. This is known as a Statutory Will.

We can advise you as to whether a statutory will should be considered and if so, make an application to the Court of Protection.

Advice about health and social care funding

We offer a one hour fixed fee session in which one of Court of Protection team will provide advice about how the health and social care funding system works and how to ensure that the person for whom you are Deputy or Attorney (or yourself) is receiving the care they need and are entitled to.

We can also undertake further work to challenge inadequate care and support packages.

Compensation Protection/Personal Injury Trusts:

We can provide advice about setting up Compensation Protection Trusts, also known as Personal Injury Trusts, and prepare the Trust Deed. Wolferstans can also act as professional trustees in Compensation Protection Trusts.

Expert Witness Work

We offer a dedicated expert witness service. The Panel Deputy, Samantha Buckthought, can prepare expert reports for litigation purposes and can advise during the course of litigation as to the costs of, practicalities and issues surrounding Deputyships.

During such matters it is very important to have expert involvement at an early stage to ensure that such matters are appropriately considered and costed.

We have lawyers who are members of the Law Society Private Client Section, Solicitors for the Elderly and an affiliated member of STEP (Society for Trusts and Estate Practitioners). You can therefore have full confidence that our team are accredited and recognised as specialists in their field.

Arranging care funding for people without mental capacity

Where someone with dementia or other mental capacity issues is currently living in, or needs to be moved into, a care home, there can be issues with accessing their finances to pay for their care fees.

This is a very common issue amongst people who lose capacity. The first thing to do would be to consider whether a Lasting Power of Attorney/Enduring Power of Attorney (LPA/EPA) is in place appointing an Attorney/s to act in relation to your relative’s property and financial affairs.

If there is no LPA/EPA in place, your relative may still be able to make an LPA, otherwise an application to the Court of Protection to appoint a Deputy will be necessary. Usually, the application is for a close relative or friend to act as Deputy but if you can also apply for a professional such as a Solicitor to act.

If there is no-one willing or able to act or any dispute it is likely that the Court will appoint a Deputy from the Panel. These are Deputies who are specialists who have been selected by the Office of the Public Guardian to be on their Panel. Samantha Buckthought of Wolferstans is a Panel Deputy.

How to decide what is in a person’s best interests

If a person does not have the mental capacity to make a decision, then any decision taken or act done for them must be in their best interests. It could be a day to day decision such as what to wear, or a complex healthcare decision such as what treatment to have. Whoever makes the decision, whether it is made by the family carer, paid carer, attorney, deputy or healthcare professional, best interests must always be considered.

So, what are best interests? The term best interest is not defined by the law, however, the law does set out steps to help us work out what is in a person’s best interests.

The starting point is that everyone is presumed to have the mental capacity to make decisions and should be supported to make decisions. A person may be able to make decisions about some things but not others.

For example, a person may not be able to make decisions about their finances but can decide where to live. The decision maker is likely to be the regular care giver for day to day decisions and acts such as personal care.

However, for more complex/major decisions a decision maker will be appointed. If an attorney or deputy has been appointed, and the decision is within their power, they will be the decision maker.

Step-by-step guide

The steps the decision maker must follow are:

• Does the person have capacity to make the decision and if not, will they regain capacity? If the person does not have the capacity to make the decision in question, and for complex and major decisions a formal capacity assessment may be required, then the decision should be made in their best interests. However, if the person may regain capacity and the decision can wait, it should be delayed.
• Has the person been encouraged and supported to participate in the decision? All possible steps should be taken to help and encourage a person to make a decision, for example, showing a person the different food or clothes options.
• What are the person’s views? The decision maker should also find out what the person’s views are including past and present wishes and feelings, beliefs and values and any other factors the person may have considered.
• What are the relevant circumstances? These are the factors that the person would have taken into account and other relevant circumstances.
• Consultation The decision maker should consult with anyone named by the person, those caring for them, appropriate people interested in their welfare and any attorney or deputy appointed.
• Avoid discrimination The decision must not be based on assumptions about a person’s age, appearance, condition or behaviour.
• Is this the least restrictive decision and/or act? The purpose of the decision must be considered and whether this can be achieved in a way that is less restrictive of the person’s rights and freedom.

Acts such as providing a personal care entering and clearing a person’s house could be considered civil wrongs or crimes. However, a person carrying out acts and decisions made in connection with a person’s care and treatment, will be protected from prosecution provided they have a reasonable belief that the person does not have capacity to consent, and they are acting in that person’s best interests.

If the attorney or deputy has the authorisation to make the decision, anyone who acts or makes the decision which conflicts with their decision will not have protection from liability.

There are some specific circumstances where there are exceptions to the best interests’ process such as when there is a valid Advanced Decision.

Sometimes, you may not agree with the decision maker’s decision and if the issue cannot be resolved, you may want to consider involving an advocate, getting a second opinion, a formal or informal best interests conference, mediation or using the organisation’s complaint process. If an agreement cannot be reached the Court of Protection may have to make the decision about what is in the person’s best interests.

Get expert advice on protecting the best interests of vulnerable people

Our Court of Protection team regularly advise people applying to be Court of Protection deputies and those already acting as deputies to help ensure their loved ones’ best interests are protected. We can help with the decision-making process, giving you confidence that you are doing the best for the person you are supporting and meeting your legal obligations as a Court of Protection deputy.

We can also act as Professional Deputies where required, with Wolferstans Partner Samantha Buckthought being one of only around 70 Panel Deputies in England and Wales authorised to act for clients in this capacity.

Court of Protection costs & legal fees

Court of Protection fees

The Court application fee is currently £421.00 However, depending on the person’s income and capital, there are exemptions.

The fee for completing the COP 3 form which is the Capacity Assessment. Depending on who completes the COP 3 Capacity Assessment, the fee can be anywhere between £0.00 – £500.

The Bond premium. Before the Court releases the Order appointing the Deputy, a security bond must be put in place. This is insurance in case the Deputy acts negligently, and the amount of the Bond will be based on the incapacitated person’s estate and whether or not the Deputy is a professional.

The Office of the Public Guardian fees for the supervision of the Deputy are £100 for the appointment of the Deputy and £320 for the annual supervision, or £35 if minimal assets. There are exemptions available depending on the incapacitated person’s income and capital.

Solicitors fees for Court of Protection applications

The Court of Protection sets a fixed fee for Deputy applications which is £1204 plus VAT. However, in our experience the cost for completing this application is between £2,500 and £3,500 plus VAT.

Applications for Trustee matters have a fixed fee of £633 plus VAT.

You can request that the costs are assessed by the Court and the Court will then decide what it is reasonable for the Solicitor to charge. The situation for personal welfare Deputy applications is different as the costs are not usually paid from the person’s funds.

Usually, but not always, the Final Order appointing you or the Solicitor as Deputy authorises the costs of the application to be paid from the person’s (who has lost capacity) funds.

Professional Court of Protection Deputy fees

If a Professional is appointed as Deputy, they can charge for managing a person’s affairs. The Court sets fixed fees for professional Deputies, which are:

• £2166 plus VAT for the first year
• £1627 plus VAT thereafter

However, if the Deputy’s costs are above the fixed fee and the assets are of a level where it would be reasonable to do so, the Deputy has the option to ask the court to assess costs.

In cases where the incapacitated person’s assets are under £20,300, the professional can only charge 4.5% plus VAT of the person’s assets each year.

Our Court of Protection Team

The Court of Protection team at Wolferstans consists of 10 team members. The team is made up of Solicitors, Legal Executives, Legal Assistants and Paralegals all bringing extensive experience to each matter.

Every Court of Protection client has had a different experience and we are able to provide a bespoke package so that we can adapt to support each client

Experience within the team includes:

• Deputy Management
• Attorney Management
• Care Funding
• Personal Injury and Trusts
• Clinical Negligence
• Court Applications

The Court of Protection team realise that when a person is losing capacity to make some decisions , it can be very distressing for the people surrounding them and our aim is to take a personal and sympathetic approach when dealing with all clients and their family and friends.

We aim to work with our clients to assist them to manage their affairs and to build a positive relationship with their wider support network, so our clients’ affairs runs as smoothly as possible.