Client Guide: The Court of Protection
The Court of Protection is a court that looks after the affairs of people who as a result of some mental disorder are unable to manage their own affairs. A person called a deputy is appointed to deal with the property and affairs and/or the personal welfare of the person without mental capacity.
The Court, through the Office of the Public Guardian, supervises the deputy. The Court refers to the mentally incapacitated person as a 'client of the Court of Protection'.
When is it necessary to make an application?
- If a person is incapable of managing their affairs owing to the lack of the necessary mental capacity.
- There is no Enduring Power of Attorney or Lasting Power of Attorney and the person is not capable of making one owing to their lack of mental capacity.
- The person has assets that need to be used for their own benefit.
How do you make the application and what fees are payable to the Court?
The application is made to the Court of Protection. The application comprises a series of forms - an application form (form COP1), an assessment of capacity form to be completed by the client's GP or other doctor (form COP3), a schedule of the client's assets and personal circumstances (form COP1A and/or COP1B) and a Deputy's Declaration (form COP4). All these forms have to be submitted to the Court together with an application fee of £400. Notice of the application has to be served on the relatives of the client.
There is a one-off £100 Deputy Assessment fee for assessing each case, adding details of the deputy and the order to the register and setting the supervision level.
The annual supervision fee is based on the cost of providing services to support the deputy and the client.
The amount is dependent on the level of supervision you have been allocated.
- The annual supervision fee for Type 1, 2 and 2A cases is £320.
- Type 3 cases attract an administration fee of £35.
- Annual fees are collected on 31 March.
Fees are paid from the client's funds but each case will be reviewed regularly and the level of supervision allocated may change as circumstances change. It is also necessary for the deputy to take out an insurance policy to protect the client against any maladministration by the deputy. The amount of insurance and its premium is decided by the Court and is payable annually.
Who can be appointed a deputy?
A relative of the client is usually appointed as the deputy but, in many cases, a professional adviser will act as the deputy. At Blake Morgan we have partners who act on a regular basis. Rachel Brooks, head of department, has been appointed to the Court of Protection panel of external deputies. This means that Rachel has been approved by the Court to act in cases where there is no one else able to act.
What can a deputy do?
On appointing a deputy, the Court issues a First General Order, which gives the deputy wide powers to manage the affairs of the client. This means that the deputy can sign and execute deeds and documentation on behalf of the client, open or close bank accounts, buy or sell stocks and shares, maintain insurance policies and even buy or sell a property. It is important that the information provided to the Court in the initial application is accurate and comprehensive as it is from this information that the First General Order is made.
If, at a later date, it is necessary to buy a house or invest a large amount of money on behalf of the client and authority is not included in the First General Order, then it will be necessary to make a further application to the Court to obtain an order authorising the deputy to take that action. A fee of £400 is payable every time an application is made to the Court.
Special orders are required from the Court in order to:
- Make gifts from the client's assets
- Make or alter a Will for the client
- Appoint or discharge a trustee – these applications may be necessary if there is a jointly-owned property.