Property  

The Court of Protection and why it should be the last resort

  • Describe the importance of avoiding the Court of Protection
  • Identify the Powers of the Court of Protection
  • Explain some of the costs involved in the Court of Protection
CPD
Approx.30min

Court of Protection powers

Under the Mental Capacity Act 2005 the Court of Protection can make decisions about a person’s finances, health and welfare where that person lacks the mental capacity to do so themselves.

The Court also has the power to appoint Deputies to make decisions on behalf of a person who lacks capacity.

The main powers of the Court include making decisions about whether:

  • A person has capacity to make a particular decision
  • An action is in a person’s best interests
  • A person is being deprived of their liberty

The Court can also rule on:

  • The validity of lasting and enduring powers of attorney
  • The appointment of deputies and what powers they have
  • Whether a deputy has acted correctly and removal of deputies or attorneys
  • Deciding whether a Power of Attorney is valid
  • Deciding whether Deprivation of Liberty Safeguards are justified
  • Deciding upon where a person should live or who should look after them (when other interested parties can’t agree)
  • Deciding what type of medical treatment someone should receive – where there is doubt or dispute
  • Whether an attorney can make gifts on behalf of the person who lacks mental capacity
  • Whether it is appropriate for a Statutory Will to be made for the person who lacks mental capacity

The two types of deputy

A deputy can be appointed to cover all a person’s financial and welfare issues or different people may be appointed depending on their expertise and willingness to undertake different requirements.

Property and financial affairs deputy

Under a property and affairs court of protection order the appointed deputy can take full control of the person's financial affairs.

This can include managing pensions or mortgages or other debts, applying for benefits and paying bills. They can also sell a home in order to pay for nursing care.

Personal welfare deputy

This allows a person to make decisions about the individual’s wellbeing and medical treatment. 

Issues with the Court of Protection 

At this stage it is important to stress that the Court of Protection does what it is required to do by law. 

However, it must do this without the guidance of the person concerned. This can be hugely frustrating and even financially devastating for some individuals as whatever was agreed when the person was in good health, unless it is documented in a Power of Attorney, is irrelevant at the point that person's mental capacity declines and a case reaches the Court.

Cost

It is very expensive. The Court fees alone could set most people back over £1,000, if the application is contested. This excludes any legal support that typically is required by the friends or family who are trying to do the best by the individual concerned. 

Supervision and reporting 

It should be noted that you do not need to appoint lawyers, but objectively speaking the process is not straightforward and can be very stressful for the majority of the population.

Court fees

  • Application fee – £365: payable on making an application to start court proceedings or on making an application for permission to start proceedings.
  • Appeal fee – £230: payable on filing an appellant's notice appealing a court decision or seeking permission to appeal a court decision.
  • Hearing fee – £485: payable where the court has held a hearing to decide the application and has made a final order, declaration or decision.
  • Copy of document fee – £5: payable on requesting a copy of a document filed during court proceedings.
  • A medical practitioner may also charge a fee for completing a medical certificate.
  • Deputies may also be required to purchase what is known as a Deputy’s Bond which can cost between £100-£300, possibly more depending on size of the estate. The bond covers any financial loss to the person lacking capacity as a result of the actions of Deputy or Deputies.
  • You will also need to pay a £100 assessment fee if you are a new deputy

Ongoing deputyship fees

  • You must pay an annual supervision fee depending on the level of support your deputyship needs. You will pay:
  • £320 for general supervision (The annual supervision fee is due on 31 March for the previous year)
  • £35 for minimal supervision – this applies to some property and affairs deputies managing less than £21,000

Legal fees

Legal fees are typically ongoing, especially if the case is contentious.

However, the fees that a solicitor can charge are capped or indeed assessed by the Court, but at a much lower hourly rate than you would expect and below what many would charge for other work, which is why many firms will not undertake Court of Protection work.

The fee to work up to and including the date upon which the court makes an order appointing a deputy for property and affairs is capped at £950 (plus VAT).