legal faqs from Humphries Kirk Solicitors

Court of Protection FAQ’s

Court of Protection FAQ’s

 

Is the Court of Protection a ‘Secret Court?’

No. The Court makes decisions regarding vulnerable adults and as such a degree of privacy is generally required as the people that are having decisions made about them cannot make decisions for themselves regarding publicity. The popular press have created the ‘secret court’ myth to suit their own coverage.

 

Can anyone apply to be a Deputy?

In theory, yes, but the Court will wish to see that the person applying to look after the affairs of a vulnerable adult is sufficiently close to that person and is trustworthy enough to be appointed. In addition, certain people are automatically disqualified from acting as a Deputy, such as undischarged bankrupts.

 

Who decides whether a vulnerable adult lacks capacity make decisions for themselves?

Typically a Doctor. A medical report is a necessary part of an application to the Court of Protection

 

Is it necessary to attend Court?

It depends. In the majority of applications to appoint a Deputy, the Court will deal by correspondence. However there may be times where the Court deem that a hearing is required, such as where a Deputyship application is opposed or where the issues in the case are such that correspondence is not appropriate.

 

My mother only has a state pension and £1,000 in savings. Do I need a Deputyship Order?

Quite possibly. If an asset holder (such as a bank, building society, Shareholding Company) will not allow a person acting on behalf of another to have information or receive money on behalf of that person then either a Lasting Power of Attorney or Deputyship Order will be required. We have (unfortunately) needed to apply to the Court of Protection to enable a family member to receive state pension into a nominated bank account.

 

How long does it take for a Deputy to be appointed compared to making and registering a Lasting Power of Attorney?

It depends on the issues, but the Office of the Public Guardian aim to register Lasting Powers of Attorney within 5 weeks (it usually takes longer) and the Court of Protection tend to take approximately 6 – 8 months to issue a Deputyship Order.

 

Is there much of a difference in legal fees between Lasting Powers of Attorney and Deputyships?

Unfortunately yes. The Court application fee for a Deputyship application is currently £400 and legal costs are likely to be higher as a result of the extra work required to process.

 

I have a Lasting Power of Attorney for Property and Financial Affairs for my father/mother, so can I make decisions relating to Health and Welfare?

Absolutely not. You will need to apply to the Court of Protection for an order relating to the particular health and welfare decision that needs making assuming of course that the person in question does not have mental capacity to be able to make decisions for themselves. A Deputyship Order will contain specific provisions, and any decisions that need making outside the scope of the order will require a separate application to Court.

 

Why do I need to have a security bond if I am appointed as an Attorney?

The purpose is to cover the estate of the vulnerable adult in case the Deputy mismanages or wrongfully appropriates funds.

 

Why are Deputies supervised by the Office of the Public Guardian and why is there a cost?

The Office of the Public Guardian maintain a register of Deputies and are obliged to supervise the work of deputies to ensure that the affairs of the vulnerable adult are being well looked after. There are various levels of supervision, so where a professional (such as a Solicitor) acts a Deputy, the supervision levels are low. Where a lay person acts a deputy, the supervision levels are high. The costs of supervision are due because the OPG is a public body expending public funds, which need to be recouped.

 

I believe that a Deputy is financially abusing a vulnerable adult. What should I do?

The OPG can be contacted and will investigate any allegations of financial abuse. This should also be picked up by the OPG as part of their general supervision of Deputies.

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