Court of Protection Solicitors Essex, Romford, Brentwood

What Is The Court Of Protection?

The Court of Protection is a specialist Court which makes decisions relating to the finances and/or personal welfare of people who lack mental capacity to make those decisions for themselves.

What does a Court of Protection do?

The Court of Protection makes decisions relating to finances and/or the personal welfare of individual’s who lack mental capacity to make those decisions for themselves.

The primary role of the Court of Protection is to appoint a Deputy (or Deputies) to act for the person who lacks capacity, either because they have never made either a Lasting or Enduring Power of Attorney, or if the Attorney is unable/unwilling to act or has been removed.

However, the Court of Protection can also be asked to make decisions regarding gifts to be made by a person who lacks capacity (for instance, for the purpose of tax planning) or specific issues which could arise in the management of a person’s finances or personal welfare issues.

What Decisions Can The Court Of Protection Make?

The Court can make decisions relating to the appointment of removal of both Deputies and Attorneys.

The Court can also make more specific orders, such as authorising gifts by the person who lacks capacity or creating a statutory Will (for when a person has failed to make a Will or the Will is no longer appropriate).

Decisions can also be made relating to a person’s personal welfare. These would include where there are concerns about where a person is living or whether they are given certain medical treatments.

Why Choose Mullis & Peake?

If you choose Mullis & Peake LLP Solicitors you will be working with a team that has extensive experience of obtaining deputyship orders and Court of Protection procedures. We are regional specialist in the Court of Protection field and currently look after the affairs of more than 230 clients on a continuing basis. These include clients under both LPAs and Deputyships.

Court of Protection Services

Court of Protection Enquiry

Fill out the form and a member of our team will get in touch to discuss how we can help.

Appointing and supporting deputies

If you wish to act as a financial deputy for a friend or family member, we are able to complete the process of applying for a Deputyship Order with the Court of Protection. Once it has been established that the individual lacks capacity to manage their own financial affairs, we can support the proposed Deputy in making those applications.

We also assist with additional applications which may be necessary, such as creating a statutory Will or applying to sell / buy property.

Professional deputyship services

Samantha Hamilton, a Member of the firm and head of our Court of Protection department, is one of only approximately 70 appointed as a Court of Protection Panel Deputy. This means that she can be nominated by the court to act for those with no one willing or able to act as Deputy, or where there is a dispute and an independent person is required.

Court of Protection

Lasting Powers of Attorney

Lasting Powers of Attorneys allow you to select those individuals who you would want to manage your finances/personal welfare decisions in the event that you are unable to make those choices.

If you lose capacity (even temporarily) and you have not completed LPAs, this can cause a number of issues which include the freezing of assets (including joint accounts), debts accruing and otherwise additional distress for those around you.

In the event that there is not a valid LPA, someone will need to make an application to the Court of Protection to manage your affairs.

If you have people you can trust to assist with the management of your finances or make decisions about your health and welfare, then it is important to have LPAs in place.

Buying, adapting and selling a property

Specific authority is required to buy or sell property under a Deputyship and it may be necessary to apply for an additional order from the Court of Protection (if it was not requested at the time of applying for Deputyship).

The type of additional order which is required will depend on whether the property is held in the sole name of the person or joint names with someone else.

In any event, the Court will need to consider whether it is in the person’s best interests to buy/ sell property.

Court of Protection Services

Gifts and tax planning

There are rules and limitations which apply when considering making a gift for a person who lacks mental capacity.

Attorneys/ Deputies are able to make gifts on behalf of the person but the limitations in place include:

  • That the gift is made to a family member, friend or other connection on a ‘customary occasion’; or
  • To a charity the person might have given to if they had mental capacity.

In addition to the above, the Attorney/ Deputy would need to ensure that the gift is reasonable and in the best interests of the donor.

If there are any concerns about the gift to be made, or if the intended gift may be considered as unreasonable for the size of the estate/ questions raised about if it is in the best interests of the individual, then authority should be sought from the court of Protection.

Various Ways a Will Can Be Destroyed

Statutory Wills

If a person lacks capacity to make or change their Will, an application can be made to the Court of Protection to create/update a Will for them.

Once the application has been made, the Official Solicitor will usually be appointed to represent the person who lacks capacity. It will be necessary to notify those who will be impacted by the statutory will (either the beneficiaries in a previous Will or those who would have inherited under the intestacy rules).

The process can be quite long, especially if any one who is notified of the application objects to the statutory Will. It is also possible for an emergency application to be made if the person only has a short time to live.

Court of Protection Solicitors Essex, Romford, Brentwood

Personal injury trusts

These trusts help to ‘ring fence’ funds which have been received from a personal injury. This then ensures that the compensation is not included for the purpose of mean-tested benefits.

There are strict guidelines which must be followed with these specific types of trusts.

When do you bring Court of Protection proceedings?

An application for a Deputyship can only be made once a person has lost mental capacity to make decisions for themselves relating to their finances/personal health and welfare.

If a person still have mental capacity/fluctuating capacity, then an LPA should first be considered. If it is then confirmed that the person lacks capacity to make their own decisions, consideration should be given to deputyships.

Frequently asked questions

While some fees will need to be paid upfront, such as the Court fee, it is possible for the costs to be recovered from the vulnerable person’s finances once they can be accessed.

The current timescale which is being provided by the Court of Protection depends on whether the application is made online or via post. Only certain types of application can be made online.

The current advice is that online applications are taking approximately 18 weeks while paper applications are taking 22 weeks. However, this typically only considers straight forward applications where the Court have not raised any additional queries/requested additional evidence to support the application.

It also does not consider those cases which are more complicated and which may need to be made by a judge instead of an officer of the Court.

The Court of Protection can make decisions regarding both finances and health/welfare.

These can be general decisions, such as appointing a financial deputy to manage all day-to-day finances but could also be for specific issues such as whether a large gift can be made by an attorney.

It is possible to apply for a Court of Protection order directly with the Court and it is not necessary to use a solicitor.

However, it should be noted that any errors with the application can mean that the same is rejected by the Court of Protection. This could be some months later and the delays can cause additional distress to those around the vulnerable person.

It is possible for anyone to apply to the Court of Protection to be appointed as Deputy, provided that they are over the age of 18 and have mental capacity.

This could be a family member or friend, professional (such as a solicitor) or the local authority. The Court of Protection would however need to be satisfied as to the reasons why the application wants to be appointed and whether it is appropriate for the individual/individuals/organisation to be named.

For finances, the Court of Protection would also consider your skills to act (i.e. those who are bankrupt would not be considered suitable).

As of May 2024, the Court of Protection attracts a court fee of £408 per application.

An Attorney, if one has been appointed under an LPA or EPA

A Deputy if one has been appointed by the Court of Protection.

Anyone over the age of 18 and with mental capacity can be appointed as a Deputy. For finances, they would also need to prove that they have the requisite skills (i.e. proven track of not being bankrupt and so on).

A Power of Attorney allows you to choose who makes decisions on your behalf. For finances, this can also be in place for when you have capacity but perhaps cannot or do not wish to deal with something (such as dealing with utility companies on the phone). Health and welfare can only be used once unable to make the decision yourself.

However, both can allow for smooth transition if you should lose capacity as the attorneys can immediately step in.

Court of Protection is only once a person has lost capacity. It may be that there is no attorney able to act/ the attorney has been removed, and now the vulnerable person has no choice about who should act.

Consideration should first be given to the intestacy rules. Although it is preferable to have a Will, in many cases it is possible that the intestacy rules may still adhere to the wishes that the incapacitated person would have had.

In the circumstances where the intestacy rules are not favorable/there are other factors to be considered, then it is possible for an application for a statutory Will to be made to the Court of Protection.

A Deputyship Order made in England and Wales may be recognised in other jurisdictions. However, it may be necessary to have the formal documents recognised by foreign courts.

It is similar to an attorney, which more people are familiar with.

A Deputyship Order allows for the appointed person/ persons to act in the best interests of someone who lacks mental capacity to make decisions for themselves. This may relate to their finances and/ or persona health and welfare.

The Court of Protection cannot make an order if the person has capacity to make the decision themselves and there are no other concerning factors (such as undue influence).

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Meet OUR people

Court of Protection Team

Member

Samantha Hamilton

Samantha is a Solicitor and Member at Mullis & Peake and heads our​ Court of Protection ​team

Contact Samantha
Court of Protection Senior Paralegal

Lorraine Warren

Lorraine is a Court of Protection Senior Paralegal who has been part of the Mullis & Peake team for over 15 years

Contact Lorraine