An application to the Court of Protection is required for the appointment of a deputy. In order to make such an appointment, the Court must be convinced that the affected individual lacks decision-making capacity. The Court of Protection must then determine that the proposed deputy (new decision-maker) is qualified to serve on behalf of the individual.
Among the most important aspects of lay deputy applications is addressing problems of ability. It is vital to avoid making assumptions about a person’s competence and mental state based merely on their diagnosis. It is often difficult to determine whether a person is capable of making decisions.
Although the Court can appoint a welfare deputy, this is much less usual than appointing a financial deputy because the Court must make decisions that restrict the individual’s rights and freedoms as little as possible.
In most cases, a deputy is a friend or relative of the incapacitated individual, but in rare instances, it may be a lawyer, accountant, or other court-appointed expert.
Professional deputies charge a fee for their services, which is normally covered by the client’s funds. To become a deputy, you must be at least 18 years old and consent to your nomination. In this article, court of protection deputyship application, we take a look at these issues in more depth.
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What is the Court of Protection?
In accordance with the Mental Capacity Act, the Court of Protection oversees decisions and proceedings. If someone needs the Court’s authorization to make decisions about your health, welfare, finances, or property, you or someone aiding you must file a petition.
The court can make decisions about:
- Whether an action to be performed on your behalf is appropriate when you lack the capacity to take it yourself — the court can evaluate whether they feel you have the mental capacity to make a specific decision or whether something is in your best interests.
- Disputes that cannot be resolved by other means, such as by employing an independent advocate for mental competence.
- Situations where multiple decisions must be made on your behalf, as opposed to a single decision.
- Disputes over the authorization for the deprivation of liberty safeguards or their application.
- Removing an attorney or deputy appointed under a lasting power of attorney.
- In the absence of an attorney or deputy, your healthcare or personal care.
- Whether an advance decision or Lasting Power of Attorney is legal, and whether its meaning is contested.
- Whether a deprivation of liberty safeguards permission was issued lawfully or settling a dispute regarding the use of safeguards against you.
The Court must always act in your best interests when making judgments for you.
When must you submit an application to become a deputy?
You can seek to become a person’s deputy if they do not have a Lasting power of attorney and ‘lack mental capacity,’ meaning they cannot make a decision for themselves at the time it must be made. This could be the result of a chronic sickness or an unforeseen accident. As a deputy, you will be authorised by the Court of Protection to assist them in making decisions, or if they are unable to do so, to make those decisions for them.
Submitting a deputyship application
To apply for the position of deputy, you must file an application with the Court of Protection. The application process involves providing the court with extensive information regarding the circumstances of the individual in need of assistance.
This could include information about the individual’s living situation, family ties, money, and care arrangements. This depends on the sort of deputyship for which you are applying.
The Application forms
As part of your application, you must complete the following forms (reference codes are displayed in brackets):
the main application form (COP1) includes basic information about the applicant, such as their address and family members, as well as the names of at least three people who must be notified of the application.
Annex A: supporting information for property and affairs applications (COP1A) — this includes the applicant’s income, including any benefits, savings, investments, and property ownership. In addition, it covers their expenses (including care fees) and any outstanding debts.
Annex B: supporting information for personal welfare applications
Annex B: supporting information for personal welfare applications It also includes the care or treatment information you need to make judgments on assessment of ability (COP3) deputy’s declaration (COP4).
The COP3 form has two sections. You must complete Part A, whereas a “practitioner” must complete Part B. This is so that they can assess the individual’s mental capacity. On the application form, a list of professionals who qualify as “practitioners” is provided.
The COP4 declaration describes your situation and outlines the tasks you will assume as a substitute. You must describe your occupation and indicate whether you have ever been convicted of a crime. In property and affairs applications, you must also provide financial information.
You must be able to demonstrate to the court that you possess the necessary abilities, expertise, and dedication to fulfil your responsibilities. You must also ensure them that there are no circumstances that would render your appointment improper, such as if you have significant financial or health issues or are bankrupt.
In certain instances, you may additionally be required to complete the following forms:
This is usual for personal welfare deputyships but not for property and affairs deputyships (COP2). You must explain why you expressly need a deputyship and whether the person’s needs may be handled in another way.
You must explain why you expressly need a deputyship and whether the person’s needs may be handled in another way. These occurrences are uncommon. You can use the COP24 to explain why you are unable to do so and why you believe the individual for whom you are applying as a deputy lacks the competence to make certain decisions.
Acting with a number of deputies
If you have decided to apply with others to serve as a deputy, you will need to consider how you wish to act. It is possible to act jointly or jointly and severally.
When there are just joint deputies, all decisions must be made jointly, often in person, such as opening deputyship bank accounts and subsequently withdrawing funds. If all deputies are not present, it is impossible to act. Acting as joint only deputies may seem reasonable, as you must both agree before any action can be conducted and neither of you can act without the other’s knowledge.
Joint and several deputies may make decisions together or on their own. This can make life easier for deputies who live in distant locations. As a joint and several deputy, one individual can act alone if necessary, but they can gather together to make judgments on matters of greater importance. Such as a possible nursing home or the sale of assets to fund care.
What happens if you are not selected?
There is no assurance that you will be granted the deputyship if you apply for it. In certain instances, a professional deputy will be selected. This may be the case if there are complicated economics, family issues, or if the individual believes that being under the care of a deputy is more advantageous.
You can still collaborate with the assigned professional deputy to make decisions in the donor’s best interest and participate in their care.
Does the Deputy have full authority over the individual’s affairs?
No, the deputy’s authority is limited to the terms of the court order. They must also adhere to the guidelines outlined in the Mental Capacity Act of 2005 and the accompanying Code of Practice.
How long will the process take?
It can take around 6 months to appoint a deputy. Even more time may be required if the court requires additional information to decide the application. To avoid delays, it is crucial that all paperwork is properly filled out and that the court receives all pertinent information at the outset.
In really urgent situations, you might petition the court for an interim injunction, for instance to access funds to pay off debts.
Are Deputies supervised?
The Office of the Public Guardian (OPG) supervises deputies, and deputies are required to submit an annual report to the OPG detailing the decisions they have made and the money they have spent. The deputy may delegate the preparation of the yearly report to a lawyer or accountant.
How long does the deputy order remain in effect?
The court order will specify the duration of the deputyship. If the individual regains capacity, a petition to discharge the deputy must be filed with the Court of Protection. If the individual dies, the deputyship terminates automatically.
What if I disagree with the ruling of the Court?
You may be able to appeal a Court of Protection ruling to the Court of Appeal; but, you may require permission to do so. If you wish to contest a ruling, you should consult with a Court of Protection-specialized solicitor.
Can anyone apply to the court of protection?
Yes, anyone can apply.
If you have a question that the Court has the authority to decide, you may file a petition. You do not need authorization to do this if you are the subject of the court’s ruling and you are over the age of 18. If you are under 18, your legal guardian would apply, and they might do so without your permission.
Without authorization, your solicitor, deputy, or anyone designated in a court order pertaining to the subject could also apply. Family members, hospital trusts, Clinical Commissioning Groups, and local councils may also apply, but only with Court approval.
If someone takes a legal action on your behalf to the Court of Protection due to your lack of ability, you should still be included. You will be required to hire a solicitor, but if you are unable to do so, the court may appoint a representative on your behalf.
How we can help
We have a proven track-record of helping clients with court of protection orders. We will guide you through the process and ensure all checks are carried out swiftly and efficiently and we firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact our Private Client Solicitors
It is important for you to be well informed about the issues and obstacles you are facing. However, expert legal support is crucial in terms of saving you money and ensuring you achieve a positive outcome.
To speak to a member of our new enquiries team today, simply call us on 0345 901 0445 or click here to make a free enquiry . We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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