The reality of modern society is that each of us will be faced with the possibility of losing capacity or dealing with a family member who has lost capacity to manage their affairs. This is when the Court of Protection steps in if there is no attorney.
The aim of the Court of Protection is to protect and empower people who do not have the mental capacity to make decisions whether this is due to age, illness or accident.
The Court of Protection will authorise someone to be appointed as a deputy for the vulnerable person, who is tasked with supporting them to manage their affairs. It is a challenging task and one that should not be taken lightly, with reporting requirements to the Office of the Public Guardian including an annual financial report.
In some instances, it will be a family member, spouse or friend who is appointed to act, however if there is no-one suitable or willing to take on the role, the Court of Protection will select a member from its Panel of Professional Deputies.
At Wolferstans, we have a specialist Court of Protection team who understand the complex issues which can arise when a person lacks or loses the mental capacity to manage their own property and financial affairs.
Our Court of Protection solicitors can advise you on:
- Lasting Powers of Attorney
- Becoming a Court of Protection deputy
- Acting as a Court of Protection deputy
- Appointing a professional Court of Protection deputy
- Making routine or contested applications to the Court of Protection
- Compensation Protection Trusts referred to as Personal Injury Trust previously
- Care funding
- Advice to family members who are appointed as deputies or attorneys.
Our Court of Protection team is headed by Sophie O’Connell and 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.
Sophie’s 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.
Find out more about our Court of Protection team.
Speak to our Court of Protection solicitors in Plymouth
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.
Find out more about Personal Injury 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.
Find out more about funding care.
Our Court of Protection Leaflet
Court of Protection FAQs
The Court of Protection is the Court in England and Wales dedicated to issues relating to people who lack mental capacity. The Court can make decisions or appoint deputies to make decisions in relation to a person’s property and financial affairs or a person’s health and welfare. It follows the rules set out in the Mental Capacity Act 2005, which protects and empowers individuals who are unable to make certain decisions for themselves.
A Deputy may be appointed if a person is assessed as not having the capacity to make decisions about his or her affairs or personal welfare, although personal welfare Deputyships are less common.
A person must be assumed as having capacity unless it is established that he or she lacks capacity. This is normally determined by a “capacity assessment”, which can be completed by the individual’s own GP or a specialist practitioner. There is normally a charge of around £100 – £200 for this assessment.
If an individual is found to lack capacity, a Deputy can be appointed to help manage his or her affairs. A Deputy may be a professional Deputy or a relative or friend of the person alleged to lack capacity. It is possible that the Court may decide to appoint joint Deputies if this is believed to be in his or her best interests. A Panel Deputy may be appointed in situations where an individual has no friends or relatives or where there is no-one deemed suitable or willing to act.
The Court of Protection maintains a select Panel of individuals who act as Deputies, recognising their skill and expertise in this area. The Panel nationwide consists of a small number of members and a Panel Deputy will be appointed by the Court if there is no-one else available and willing to act.
Samantha Buckthought, Senior Private Client Partner at Wolferstans, is a Panel Deputy.
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. Exactly how a Deputy decides what is in someone’s best interests will depend on the circumstances, but there are various steps you can go through that can help you make this determination.
Find out more about how to decide what is in a vulnerable person’s best interests.
The Office of the Public Guardian (OPG) is responsible for supervising appointed Deputies and investigating any complaints about a Deputy when concerns are raised that they may not be acting in a person’s best interests.
The OPG oversees Deputies by asking them to complete an annual report. This helps to ensure the funds are being managed appropriately and in accordance with the Deputy Order.
A Lasting Power of Attorney (LPA) is made by a person who has mental capacity and they can choose who they would like to act on their behalf. If it is not clear if a person has the mental capacity to make an LPA, a qualified professional will do a capacity assessment.
If a person lacks the capacity to make an LPA it may be necessary to apply to the Court of Protection for a Deputyship.
If you need an LPA visit our Power of Attorney page for more information.
Court of Protection costs & legal fees
Court of Protection fees
The Court application fee is currently £385. 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. The medical professional is likely to charge between £100-£250 for this work.
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.
There are also fixed costs for conveyancing matters involving a person who has a Deputy and for Trustee applications.
Solicitors fees for Court of Protection applications
The Court of Protection sets a fixed fee for Deputy applications which is £950 plus VAT. If the Solicitor finds that their costs are going over this amount, they must inform the proposed Deputy and obtain agreement that that the additional costs will be paid.
Wolferstans’ Court of Protection Team is experienced in making applications for Deputyships and managing people’s financial affairs. In the majority of cases we are able to compete applications for the fixed cost of £950 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:
- £1670.00 plus VAT for the first year
- £1320.00 plus VAT thereafter
If the level of work required means that the Deputy will need to charge more than this, their costs must be assessed by the Court of Protection before they can be paid.
In cases where the incapacitated person’s assets are under £16,000, the professional can only charge 4.5 % plus VAT of the person’s assets each year.
Speak to our Court of Protection solicitors in Plymouth
For more information or to arrange a no-obligation appointment with one of the Court of Protection solicitors, please contact the team’s New Client Co-ordinator Daron Christian.