Adjusting to the challenges caused by coronavirus has been difficult for all of us. However, for those acting as the executor of the Will during this period, the obligations placed...
Acting as a Court Appointed Deputy
Before making an application to the Court of Protection, it is important to check if permission is required to do this. Whilst permission is not usually required if the application relates to property and financial affairs, it is generally needed for applications regarding health and welfare. If you need permission to apply, on which expert advice is available, your application cannot proceed until it has been granted.
The Court aims to deal with an application for permission within 14 days of receipt, although a Court hearing may be required. If permission is refused, you can ask the Court to reconsider or apply for permission to appeal against the decision.
If you do not need permission to apply, or it has already been granted, the Deputyship application can proceed. You must submit a completed application form (COP1), together with supporting information, to the Court of Protection. An application fee, subject to any exemption or remission is also required, along with an assessment of mental capacity (COP3) and a Deputy’s declaration (COP4).
The application form (COP1) together with the ‘supporting information form, sets out the order the applicant is requesting and detailed information concerning the person without capacity. It is sensible to gather as much of this information as possible before completing of the Court forms. The assessment of mental capacity (COP3) should be provided by a medical practitioner. The Deputy’s declaration (COP4) is to enable the Court to assess the suitability of the applicant for the role.
When the Court receives your application, it will stamp it (‘issue it’) and return it to you with some additional forms. These will contain information which you need to share with the person to whom the application relates, and require you to notify other people concerned with the application.
Once this process is complete, the Court will either make a decision without requiring a hearing, confirm arrangements for a hearing to take place, or delay a decision pending further information requested.
After the Court has made its decision, you will be sent official copies of the order to be checked and should then return any copies to the Court that require amendments due to error. Once the final order has been made, you must inform the person to whom the application relates of its content and effect, and explain that they may seek advice and assistance in relation to the order. If you are unhappy with the Court’s decision, you may apply for it to be reconsidered or for permission to appeal against it.
The Court requires that all Deputies appointed to manage a person’s property and financial affairs must arrange a security bond (similar to an insurance policy) to protect the incapable person against any financial negligence caused by the Deputy. The arrangement is a standard requirement and is not intended to reflect on the Deputy’s personal integrity.
Other considerations for Deputyship applications
Related costs should be a key consideration before deciding on whether a Deputyship application is the best option.
The Court application fee is in the sum of £385 (unless a fee exemption or remission application is submitted). A medical professional will also usually charge a fee for the completion of the medical assessment Court. If a Court hearing is required (which is not very common), an additional Court fee of £500 us payable.
Once appointed as a financial deputy, there are the costs of the security bond to pay (which will vary depending on the value of the security the Court decides is required. Once the Court have made the Deputyship Order, their role comes to an end and the administrative responsibility of overseeing the Deputyship will pass to the Office of the Public Guardian who also charge fees.
Typically, the Court authorises payment of any fees and costs associated with a Deputyship application from the funds of the mentally incapable person, after a Deputy has been appointed. For financial deputyships, the basic principle is that the Deputy is responsible for all fees and costs unless and until the Court decides otherwise.
Another important issue will be the time involved in completing the application process, which can be considerable. From start to finish, it is not uncommon for the appointment of a Deputy to take from six months to a year to complete.
A solicitor can make an application on your behalf, but this is not essential. The Court of Protection cannot provide any legal advice or services, and so many people find the assistance of a solicitor helpful when making a Deputyship application.
Management of Deputyships
The role of a property and financial deputy is to manage and use the person’s money in their best interests. Deputies are not permitted to make large gifts out of the person’s money, or hold any money or property in their own name of the person’s behalf, or make any decisions which may conflict with their role as Deputy.
Consideration should be given to spending money on activities or items that will improve the person’s quality of life, such as new clothes, items for their home or room in a care home, or paying extra support to allow them to visit others or go on holiday.
Every year a Deputy will need to send a report to the OPG setting out what decisions have been made on behalf of the mentally incapable person throughout the year. Financial Deputies will also need to provide details of all income and expenditure and provide further details about any major purchases.
Although a Deputy may have the legal power to administer a person’s finances, they cannot make significant gifts of their money for purposes such as to covering education fees or inheritance tax planning, unless the Court of Protection grants permission. ‘Reasonable’ gifts can be made and this will depend on the financial and care circumstances of the individual for whom the Deputy is acting.
The Deputy must apply to Court, clarifying the long-term financial situation and current health status of the person concerned. The application must clearly state the value of the intended gift, identify its recipient and explain the reason for its issue, for the Court to then make its decision. It may be beneficial to ask a solicitor to make the application but this is not a legal requirement.
Applications to the Court of Protection for Trusteeship relate to situations where two or more people own a property but at least one of them lacks the capacity to manage its administration or sale.
An appointed Trustee will be given the power to sign documents relating to the sale of the property. In a situation where a Deputy has already been appointed, a separate application may still be required as the roles are legally distinct from each other.
A Deputy can apply to the Court of Protection for a Statutory Will to be made on behalf of another person if they do not have the capacity to make a Will as a result of brain injury or illness. It can also replace an existing Will. The application is process is similar to that of applying for a Deputyship order.