Court of Protection Solicitors
When a friend or family member has lost the mental capacity to make their own decisions about their finances and healthcare – perhaps due to a brain injury or dementia – it can be an incredibly difficult time. We understand that even the day to day care of a loved one in these circumstances can be extremely challenging.
Unfortunately, without the necessary Lasting Powers of Attorney documents in place, the only way to obtain authorisation for making important decisions on behalf of your loved one is to apply to the Court of Protection for a deputyship.
At such an emotionally distressing time, this can seem like a daunting process. Even the organisation’s name can seem a little intimidating.
Applying for a Deputyship
At Jobling Gowler, we will guide you through this complex process. We can also highlight any other issues which may need your consideration:
- Applying for a Statutory Will
- Deprivation of Liberty Orders (or making a challenge to such restrictions)
- Applications for One-Off Decisions
- Urgent and Emergency Applications
When an individual has lost the mental capacity to make decisions, the immediate focus will be to assess whether a deputy (previously called a ‘Receiver’) should be appointed to act on their behalf. This person can be a family member, a close friend, or a professional such as a solicitor.
The process of applying to become a Court of Protection deputy is complex and can take a long time to complete, so it is essential you obtain legal advice and guidance as early as possible.
There are, in theory, two kinds of deputyship application that can be made:
- Property and financial affairs deputyship – allows the deputy to manage a person’s finances such as paying bills, collecting benefits, and managing bank accounts.
- Personal welfare deputyship – allows the deputy to make decisions about a person’s healthcare, welfare, and day-to-day care.
Whilst it is common for the Court of Protection to appoint a Property and Financial Affairs Deputy, it is much rarer for the Court to make a general Deputyship order with regard to Health & Welfare. However, if you do have concerns about your loved one’s health and welfare and the decisions that are being made, it is possible to make a specific application to the Court to resolve that issue.
There are a number of forms you need to complete to submit your deputyship application, including:
- Assessment of capacity form (COP3) – this includes an opinion by a medical professional to allow the Court to determine whether the person you want to become a deputy for lacks capacity under the Mental Capacity Act 2005.
- Application form (COP1) – this should state the type of application you are making, the details of the proposed deputies, details of the person to whom the application relates and details of the order required.
- Information forms (COP1A and/or COP1B) – these forms contain the supporting information required by the Court to enable them to consider the application. The COP1A relates to a Property and Affairs application and the COP1B relates to a Health and Welfare application.
- Deputy’s declaration (COP4) – this form must be completed to enable the Court to decide whether you are a suitable person to be appointed as a deputy and requires you to give certain undertakings to the Court. It also enables you to state why you wish to be appointed as a deputy.
Why choose Jobling Gowler’s Court of Protection solicitors?
Jobling Gowler solicitors offer a thorough and practical approach to all Court of Protection applications.
Our advice is always thoughtful and sensitive. We understand that caring for a loved one can be demanding and time-consuming, so we offer flexible appointment times, including (when Covid-19 restrictions do not apply) home or hospital visits where required.
You can be confident that your Court of Protection application will be in the best hands. We can prepare and submit the deputyship application on your behalf, help to resolve any disputes, and provide guidance and support so you can fulfil the role as a deputy as effectively as possible. We are here to ensure the process is as stress-free as possible, always keeping your loved one’s best interests at heart.
Does a deputy have to be a family member or friend?
Whilst some may feel comfortable managing a person’s property and financial affairs or making decisions on behalf of your loved one about their finances or healthcare issues, you may want to focus all your attention on the day-to-day caring aspects of looking after your loved one. In this instance, our experienced specialist solicitor – Tessa Whiskard – is able to take on a professional deputy role. Tessa Whiskard is a member of the Society of Trust and Estate Practitioners (STEP) and has completed the STEP Advanced Certificate in Advising Vulnerable Clients. With her expertise in this area, combined with the specialist knowledge of making wills and estate planning, you can feel assured that your friend or family member’s welfare, property and finances are in capable hands.
What costs are involved?
We offer a no obligation, free of charge initial consultation, so that you can talk about your concerns in a relaxed and open way. We always aim to be upfront with costs and we will provide you with full details of the Court costs and our fees from the outset. We maintain a high standard of client care and we are Lexcel accredited by the Law Society for our excellent client services and legal practice management.
Jobling Gowler is independently regulated by the Solicitors Regulations Authority (SRA).
Get in touch with our Court of Protection solicitors today
Other issues dealt with by the Court of Protection:
We can help you apply to the Court of Protection to make or change a statutory Will on behalf of someone who cannot do it themselves, perhaps because they do not understand what making a Will means or how it will affect their loved ones.
Deprivation of Liberty
If you are concerned that a loved one’s liberty is being wrongly restricted because it is not in their best interests or because they actually have the mental capacity to make their own decisions, we can apply to the Court of Protection to challenge the restrictions.
Article 5 of the Human Rights Act states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law.’
- In hospital or a care home setting:
The Deprivation of Liberty Safeguards (DoLS) can only apply to people who are in hospital or a care home setting (the ‘managing authority’). It is the procedure prescribed in law when it is necessary to deprive a person of their liberty who lacks capacity to consent to their care and treatment in order to keep them safe from harm (whatever that may be).
Where a managing authority thinks that it needs to deprive someone of their liberty, they must ask for this to be authorised by a ‘supervisory body’. For care homes and hospitals, the supervisory body is the local authority where the person is ordinarily resident.
Once the assessment has been completed and all the required conditions have been met, the supervisory body must authorise the deprivation of liberty and inform the person and the managing authority in writing. It can be authorised for up to one year.
The deprivation of liberty restrictions should cease as soon as they are no longer required.
- In a private setting (e.g their home or a carer’s home):
If a person is not in a hospital or care home setting, and your loved one lacks mental capacity – and it is in their best interests to do so – the Court of Protection may authorise restrictions on your loved one’s movements and activities. This is called a Deprivation of Liberty Order.
If you have a particular concern about a loved one’s personal welfare or financial and property affairs, we can apply for a one-off decision on your behalf e.g:
- You may feel that a person who has been appointed as an attorney to look after your loved one’s affairs is taking advantage of their situation or not doing their job properly
- You may want to make a decision which is not authorised by the original Court order
Urgent and Emergency Applications
Where you need fast decisions to be made about a loved one who has lost capacity, we can apply to the Court of Protection for urgent and emergency orders, including:
- Urgent interim order – you may need this if your deputyship application is still being considered but you need immediate authorisation to make a one-off decision for a loved one, such as paying care fees.
- Emergency order – this is used where there is an immediate risk to your loved one, such as they need medical treatment to which they cannot consent.