Court Of Protection – An Overview
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What is the Court of Protection?
The Court of Protection make decision on behalf of people who are unable to make decisions for themselves because they have lost capacity to make the decision for themselves. This can be in relation to their property and financial affairs or in relation to their health and welfare.
We specialise in making applications to the Court of Protection asking the court to make decisions. This includes:
- Appointing a deputy (property and affairs or health and welfare)
- Giving someone permission to make a one-off decision on behalf of someone else (like selling a house or making a gift)
- Application for a statutory will or codicil
Check out our downloadable guides for COP.
When is a property and financial affairs Deputy required?
There are a number of reasons why a property and financial affairs deputy may be required. For example a vulnerable adult may have lost capacity due to a progressive illness or someone may have lost capacity due to an incident in their life like a road traffic accident. In addition to this, some people may require a deputy due to a disability they are born with or as the result of medical negligence or personal injury claims.
In most circumstances the Court of Protection favours the appointment of a family member as they are usually in a better place to consult the individual but also they are more likely to understand what their wishes and feelings would have been.
However, there are circumstances where the appointment of a family member is not possible as there are no family members or nobody suitable and willing to act, or the individual’s assets are so large and complex the family feel that they do not have the relevant expertise to manage them. In these circumstances, a professional deputy can be appointed, this could be a solicitor or a Local Authority, in certain circumstances. At Wilson Browne Solicitors, we can appoint Wilson Browne Trust Corporation to be the deputy, if required and we have a dedicated team who will manage the day to day affairs of the individuals.
There are also circumstances, where an Attorney or Deputy can no longer act or they abuse their power and misuse the individual’s funds. In this situation the Office of the Public Guardian is likely to conduct an investigation and they may remove the existing Attorney or Deputy and appoint a member of the panel of deputies instead. Vicki Pearce (Wilson Browne Solicitors) is a member of the panel of deputies and can be appointed in these circumstances if approached by the Office of the Public Guardian or the Court directly.
How do we manage someone’s finances?
To start with we need to understand the client’s circumstances, financial position and family dynamics. Therefore, we are likely to start by speaking to all those who have an interest in the client’s life, this would include their family members, carers, social workers and any other professional involved with that individual.
Once we understand their financial positon, we would have to register with the relevant organisations and get access to the client’s funds so we can make sure they are receiving all the correct income and that all their expenses are being met.
In addition to this, we have to consider other elements of their property and financial affairs. This would include managing their property, if they are living there ensuring it is well maintained and that all the utilities are affordable. If the property is vacant, we need to decide whether to sell the property, rent the property or whether it is likely that the client will return there. We would also need to know if the client has a will, we are likely to need to see a copy of this to ensure that anything we do during their lifetime does not have a conflicting effect on their wishes. We would also need to be certain that the will is still in the client’s best interests and maybe even consider a statutory will or codicil application.
In reality, any decision you make every day for yourself in respect of your property and financial affairs, whether big or small, the deputy may have to make on behalf of the individual. This can include approving a budget for the client’s daily expenses all the way to where the money should be invested and whether the property should be sold.
What is incapacity?
The law presumes that everyone has the capacity to make a decision unless it can be shown otherwise. Therefore, we cannot just assume that because someone has a certain diagnosis that they no longer have capacity. It is important to understand that capacity can fluctuate and that people can have capacity to make one decision but may not have capacity to make another. For example, someone may be able to manage a daily budget but may not be able to buy or sell a house.
Office of the Public Guardian (aka OPG)
Vicki Pearce (featured below) is appointed by the Office of the Public Guardian: The Office of the Public Guardian (OPG) protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves, including decisions about their health and finances.
The Court chooses deputies from a list of guardians when no one else is willing, able or suitable to act as deputy for a person who lacks mental capacity, and their role is to support people who lack capacity by helping them make decisions about their finances. The Panel membership was last opened 5 years ago and requires a rigorous vetting process including a written submission and two telephone interviews.
Testimonials from our clients
From the family member of a client for whom Vicki was appointed the Deputy for their Property and Affairs. June 2022
I just wanted to say thank you for overseeing and looking after my Mum’s financial affairs. You were kind and considerate in your dealings with us – in very difficult circumstances. If my Mum could have thanked you, she surely would have. I thank you on her behalf, and my own – you made my life considerably easier. Many thanks. Ruby Ali-Strayton
The COP team made an application on behalf of the family for them to become deputies for their mother; our involvement in the Court of Protection electronic working (e)-pilot service. February 2022
A special thank you to James, Clare and many others. We are so very grateful for your excellent service. It has taken the ‘worry and hassle’ off our shoulders in the COP process. Thank you. Mr P.
