The Court of Protection handles decisions on financial and welfare matters for individuals who are not considered legally capable of making those decisions for themselves.
One of the most common types of application to the Court of Protection is the application for deputyship.
When might a deputy application need to be made?
The Court of Protection has the power to make decisions in cases where an individual lacks mental capacity and has not previously put legal paperwork in place to prepare for this. Often, they will decide whether or not to appoint a deputy to act for an individual who is unable to make decisions for themselves.
If an individual living with dementia was no longer able to make their own decisions, an application would not need to be made to the Court of Protection if that individual had a valid Lasting Power of Attorney in place. This is because the attorneys they had appointed in the LPA would already have the legal right to act on their behalf.
However, if the individual had not previously written an LPA – or if there was a dispute about the LPA they had written – their loved ones would need to apply to be appointed as deputies in order to make vital decisions on their behalf.
Deputyship applications can be made to the court in a wide range of circumstances. They might be necessary in long term situations, such as to support an adult with a severe learning disability. They may also be necessary in the short term, such as in the case of a brain injury.
Who has the right to make an application?
The question of who can apply to the Court of Protection is important, as not everyone is entitled to do so.
Applications for deputyship are usually made by family members or close friends of the individual in question. In some cases, applications to the court might be instigated by professionals who are involved with the individual, such as medical staff, accountants or solicitors.
If you are applying to the Court of Protection to be appointed as a deputy, you will need to be over the age of 18. You can apply for a deputyship relating to treatment and welfare and/or a deputyship relating to property and affairs. Those who are applying to act as a property and affairs deputy will need to demonstrate that they have the skills to do so.
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What is the process of making a Court of Protection application?
The first step in making an application is usually to get legal advice from a solicitor who specialises in Court of Protection cases. They will be able to fully explain the process and make sure you have all the supporting evidence necessary to strengthen your application.
As part of the application, you will need to include an assessment of the individual’s mental capacity completed by a registered medical practitioner or social worker. You will also need to name at least three people who know the individual well (such as family members, close friends or medical practitioners).
Once your application has been submitted, the Court of Protection will send you a stamped copy. This is known as ‘issuing’ your application and shows that it is being considered.
When the application has been issued, you will have 14 days to notify anyone named in the application and serve them with the relevant paperwork. This includes the three or more people who know the individual, as well as the individual themselves. If appropriate, the individual will be given the opportunity to give their opinion on the application and put forward their own evidence for or against it.
Within 7 days of serving this paperwork, you will need to complete documents known as certificates of service and return them to the Court of Protection. This is to confirm all relevant paperwork has been served.
How long will it take to get a resolution?
Court of Protection timescales can vary depending on the situation.
In some cases, you might need to make an urgent or emergency application. This sort of application can only be made when there is an immediate danger to the individual. For example, if the individual was in a serious condition in hospital and was unable to consent to necessary treatment. It would also be considered to be an urgent case if the individual was likely to lose a great deal of money unless someone was able to step in. In these cases, the Court of Protection will make a decision as soon as possible.
If your application is not an emergency, it can take up to 6 months from the application being issued to deputyship being granted. It’s also important to keep in mind that it can take a number of months for an application to be put together and submitted, especially if you have to wait for a practitioner to complete a mental capacity assessment.
It can be very stressful to have to manage an application such as this, especially if the individual in question is a much-loved member of your family. Working with a solicitor can help make the process more manageable and can help to keep delays to a minimum.
An experienced Court of Protection solicitor will be able to make sure your application is as strong as possible before it is sent off, which reduces the likelihood of it not being accepted and having to be completed again.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like guidance about any aspect of mental capacity or if you are concerned about somebody's ability to make their own decisions, please do not hesitate to get in touch with us.