How the Court of Protection Can Help Your Family

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Millions of British adults who haven’t made a Lasting Power of Attorney don’t know what would happen to them or their family if they lost the capacity to make key decisions for themselves; due to conditions such as Alzheimer’s disease.

This is where the Court of Protection can step in, by appointing a Deputy to manage the property and affairs of someone who has lost the capacity to make decisions for themselves.

In this article, we explain what “loss of capacity” means, who can apply to the Court of Protection, and how long the process takes.

However, we should stress that the cost of making a Lasting Power of Attorney will be much cheaper than the initial and long term costs involved in Court of Protection work.

So by putting a Lasting Power of Attorney in place, you could avoid paying more than you need to and added emotional stress.

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What is Loss of Capacity?

English law is very clear about what is meant by losing capacity. A person is deemed unable to make a decision if they’re suffering from an “impairment or disturbance of the brain which may be permanent or temporary”.

They must also be unable to understand, retain, use or communicate information relevant to the decision. And crucially, capacity can’t be determined by “reference to a person’s age or appearance, or a condition which might lead to an unjustified assumption about capacity”.

Who Can Apply to the Court of Protection?

An application to the Court of Protection is made where the person has already lost capacity. The Court usually welcomes applications from family members, as they’re often best placed to be appointed as a Deputy.

Indeed, a professional will generally only be appointed if:

  • There’s no-one suitable from the family to take up the role of Deputy
  • There are likely to be big conflicts within the family
  • The assets are large and/or complex.

The Court of Protection application is ‘paper-based’ and very few applications are dealt with face-to-face with a Judge. It takes an average of 26 weeks for an application to be dealt with from the time it’s lodged at Court until issue.

An application fee has to be paid, as well as a surety bond and administration fees.

Once issued, the notice of appointment of the Deputy will have to be served on all financial institutions the person has dealt with, such as their bank, mortgage and investment companies.

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What Happens When the Deputy is Appointed?

After the Deputy has been appointed, it’s the Deputy’s job to act in the best interests of the family member and keep careful records of the decisions taken. The Deputy must also do all they can to involve the family member in the decisions being made on their behalf.

Each year, a report will have to be submitted to the Office of the Public Guardian (OPG) to account for how the family member’s assets have been used. The OPG provides supervision and assistance to Deputies in the exercise of their duties and are there to help. A new Deputy will receive a call from the OPG following their appointment.

The Court of Protection can also make a Will on behalf of an individual who has lost their capacity, either as part of the Deputyship itself or as a separate exercise.

The Court of Protection application process is complicated, so we’d strongly recommend seeking specialist legal advice.

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