Deputyship and the Court of Protection Michael Culver TEP CTAPS Associate Solicitor and Team Leader

What is the Court of Protection (COP)? Special Court that only deals with financial and welfare matters of people who lack capacity. Same powers in relation to mental capacity issues as the High Court Separate from Office of Public Guardian (OPG) COP makes decisions OPG ongoing supervision –Governed by Mental Capacity Act and code of practice

Type of orders court can make Various orders but by way of example: –appointing someone to look after a person’s finances (known as deputyship) –Health and Welfare Deputies only very rarely appointed –deciding where a person might live –deciding what contact, if any, a person is to have with specified persons –deciding whether a person is being deprived of their liberty –deciding whether an enduring or lasting power of attorney is valid –making a Will for a person who lacks capacity – statutory will. –Inheritance tax planning for a person who lacks capacity – including making gifts

When to make an application No EPA or LPA and P (person involved) lacks capacity to manage their affairs – COP application for a Deputy to be Appointed Disagreement regarding a serious decision that cannot be resolved in any other way – COP application Urgent applications are possible but must be genuinely urgent i.e. P is at immediate risk

How do I make an application? Application forms –COP1 – details of application –COP1a – details of the person to whom the application relates –COP3 – capacity assessment – Red & Yellow / GP –COP4 – proposed deputy ‘undertakings’ –Service of Application on P –Service of order on P –Security Bond required

Appointing a Deputy If the Court is satisfied that P cannot manage their finances then a Deputy order will be made This will appoint someone to act on P’s behalf to manage their financial affairs Who can be a Deputy: –Anyone over 18 but usually a close relative, solicitor, accountant or Trust Corporation. –Paid Carers should not agree to act due to possible conflict of interest –Can appoint more than 1 and if so they can be appointed Jointly or Jointly and Severally Appointment ends on soonest of: Subsequent Court Order; P ‘s death; Deputy losing capacity or ability to act; Deputy’s death.

Deputy Powers Limited to the terms of the Court order but often include power to sell the property, power to change, move, alter investments, power to deal with pensions and other forms of income. Gifts? Limited power to make gifts – usually only seasonal gifts consistent with what P did before losing capacity and of a reasonable size in comparison to their overall estate Will? – no authority to consider P’s Will but may need to do so to establish if a statutory will application should be made and in considering what assets to sell etc – may need authority from the Court to obtain a copy of this Must always act in P’s best interests, must follow the Statutory principles, follow guidance in the Code of Practice and only make decisions on topics Court has authorised

Duties of the Deputy Act with due care and skill – seek guidance Not take advantage of their situation (gift to themselves for instance or not buy property from P’s estate, accept third party commissions) Indemnify P against negligence actions from third parties Not delegate – can seek advice but must make decision themselves Act in good faith Respect confidentiality Comply with Court directions Keep accounts Keep persons money and property separate from their own finances.

Supervising Deputies OPG – supervises and supports Deputies Any suspicion of Financial Abuse investigated by OPG Other forms of Abuse by police/social services

Panel deputies COP Panel of Professional Deputies Appointed where: –There is a family dispute, –The attorney or deputy has acted improperly or without due care –Court not satisfied applicant is capable –There is no one willing or able to act as a Deputy

Any Questions?

Bolt Burdon Solicitors Please contact me with enquiries and signpost to: Michael Culver E: T: