Mental incapacity should never compromise a person’s right to a safe and secure future.
At Gillhams we have a team of specialist Court of Protection solicitors who help look after the needs of people who can no longer do this for themselves. By applying to and representing clients at the Court of Protection – the court dedicated to people who are mentally incapable – our team works towards getting the right financial, property and health and welfare provisions in place.
We advise clients on the options and guide them through the process. We’re calm and we’re thorough. We’re recognised for what we do, too. Partners Russell Caller, Hina Tailor and Chris Poxamatis are three of only eleven members of the Office of Public Guardian Panel of Deputies across London. That means they can be appointed by the Court of Protection to act as a deputy for a client, actively managing an individuals’ income, assets and benefits and sometimes their health and welfare arrangements too. Backed up by an experienced team, it’s a reflection of just how well we know this complex area. And that’s why we’re useful to have on your side.
Our Court of Protection Services Include:
- advising on options and process
- applying to the Court of Protection
- representation at court
- putting the court’s decision into practice
- contested applications
- mediating disputes
- planning for the future (see Powers of Attorney and Wills)
What is the Court of Protection?
An office of the High Court, with power to make decisions in relation to the property and affairs, health care and personal welfare of adults (and children in a few cases) who lack mental capacity to make these decisions for themselves. The Court also has the power to make declarations about whether someone has capacity to make a particular decision. The Court of Protection (COP) has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court. The COP also has the authority to appoint someone to make decisions on an ongoing basis for a person who lacks mental capacity to do so for themselves. This person is called a Deputy.
Who can be appointed as a Court of Protection Deputy?
Deputies are usually friends or relatives of the person who needs help to make their decisions. Depending on your relationship with that person and what decisions you are requesting to make on their behalf, you might need the Court’s permission to apply to become a deputy.
A deputy can also be a solicitor. A solicitor is usually appointed if there is no suitable family member or friend who could make the right decisions in the best interests of the person needing help or who is willing or has the capacity to take on this responsibility, or if the amounts involved are very large.
Solicitors are also appointed if there are very complicated decisions to be made. If you find yourself in this position and wish to appoint a solicitor as the deputy, it is advisable to instruct a solicitor who is an experienced professional deputy and preferably a solicitor that is on the Court of Protection Panel – as these solicitors have been selected for the Panel on the basis of their expertise, integrity and experience in COP deputyship matters. Gillhams’ partners - Russell Caller and Hina Tailor are both Panel appointed Court of Protection deputies.
How do I apply to become a Court of Protection Debuty?
If a family member or friend loses the ability through mental incapacity to make their own decisions you can apply to the Court of Protection for permission to make decisions for them. To apply, you will need a doctor’s certificate to confirm to the Court that the person you are applying on behalf of cannot make decisions for themselves. You will also be required to complete some Court forms.
It is very important that the Court forms are filled in properly or they will be sent back. It can take a long time to complete the forms and it is important that you know exactly what powers you will need to apply for. For example, you might only need the power to help your friend or relative to manage their money, or to make decisions about what treatment they receive in hospital. Or you might need a much more general power, which will allow you to help them with all their day to day decisions about their money, their property, and their health and well-being.
We can help you to work out which forms you will need and we can complete them for you to make sure that they can be processed by the Court of Protection without delay.
What happens after I'm appointed to be my relative's Court of Protection Deputy?
You’ve gone through the application process and have been successfully appointed by the Court of Protection as a Deputy for your mentally incapacitated loved one. So you can now legally make decisions on their behalf. But what happens now?
When you become a Court of Protection Deputy you will receive a Deputy Order which will clearly set out the extent of your powers for making decisions on behalf of the incapacitated person in question. Your right to make decisions will differ depending on what aspects of the individual’s life you have been granted decision-making power over. Deputyships are most often granted to handle someone’s property and financial affairs but may also deal with day-to-day care, as well as medical treatment and social care interventions.
Once the Court order has been made, you will receive numerous certified copies. Make sure to check for any errors including spelling mistakes. If you come across any you should return the copies immediately with mistakes clearly indicated. If you are working with a Court of Protection solicitor, they will be able to make sure the document is correct on your behalf.
The Court sends out a number of certified copies of the order so that you will always have enough copies to prove to relevant people or organisations that you are the authorised decision maker for the person who lacks capacity. You may even want to provide relevant parties with a copy of the order before any decisions are required, so that they know to come to you when the time comes.
It’s important to always bear in mind that your decisions may be pivotal to your loved one’s overall welfare. So it’s vital to thoroughly consider all your options prior to making the final decision on any aspect of your jurisdiction, and to make sure you carry out your duties sensibly, responsibly and pro-actively at all times. You also need to ensure that:
- Your decisions are those authorised by your Court order.
- You adhere to the Mental Capacity Act’s Code of Practice guidelines.
- You follow the Mental Capacity Act’s five statutory principles.
- All your decisions are carefully made in your loved one’s best interests.
- You keep the Court updated with your personal contact details.
If all this seems a little too much to deal with, there is help available - either to support you in better understanding your role and responsibilities as a Deputy or instead, to provide a Deputyship service, so that you have more time to take care of your loved one’s and your own personal needs.
One of the responsibilities of the Public Guardian (Office of the Public Guardian - OPG) is to supervise and support Court appointed deputies, especially lay Deputies. To contact the OPG for assistance or for more information on your new role go to the Ministry of Justice website here.
In addition it may be helpful to consult with a solicitor who specialises in Court of Protection matters. Court of Protection solicitors will work with you to ensure that your loved one’s ‘best interests’ are always protected and that you are in full compliance with all the statutory requirements. They will help you with the practical and financial aspects in managing someone else’s affairs. And, where you find yourself wrestling with a disagreement or dispute with other family members or a Local Authority over what’s in your loved one’s best interests, there are a few Court of Protection specialist who can help you navigate and resolve the conflict through a process of mediation.
To find a solicitor with the requisite experience try the Law Society website, search for a Court of Protection solicitor on Google or contact the team here at Gillhams Solicitors – specialists in Court of Protection matters - for a free and confidential chat.
What kind of support and guidance will I receive as a Deputy?
You’ve been appointed by the Court of Protection to act as a Deputy for a mentally incapacitated person and you understand what your duties and responsibilities are - but what happens if you feel overwhelmed by these responsibilities?
How will the Office of the Public Guardian support me?
The Office of the Public Guardian oversees the conduct and decisions of Deputies, to ensure they act in the best interests of the person lacking capacity, whilst following certain guidelines. How much support and guidance you receive from the OPG as a Deputy is assessed by the following criteria:
- the complexity of the affairs of the person who lacks capacity;
- the nature of the decisions that need to be made;
- the relationship between the Deputy and the person lacking capacity; and
- the type of care the incapacitated person needs.
Once these have been reviewed the OPG will allocate the level of supervision necessary. There are four levels:
Type 1: close supervision with regular contact between Deputy and the OPG.
Type 2a: an intermediate level of supervision for Deputies dealing with property and affairs, concerned with the monitoring of new Deputies or, where needed, short term interventions.
Type 2: a lighter level of supervision consisting of sample monitoring of cases.
Type 3: periodic supervision for Property and Affairs Deputies managing limited assets.
Your supervision may include:
- Ongoing support provided from the OPG while you carry out your role;
- You sending in reports to the OPG when directed by the OPG to do so;
- Check ups by a Court Visitor to assess how well the Deputyship is being managed.
In all cases, the level of support and supervision provided will be regularly assessed to ascertain whether it is still relevant for you and your circumstances.
Will I need to pay for supervision?
In short, yes. Supervision fees are set by Parliament for OPG supervision. They are individually set for each case depending on the cost of providing support to both the Deputy and the person lacking capacity. Supervision fees are paid out of the assets of the person who lacks capacity and not by the Deputy.
Can I employ professionals to help me?
You are allowed to employ professionals, for example solicitors or financial advisors, to aid you in carrying out your responsibilities as a Deputy, to the best of your ability. Like supervision fees, the fees incurred from hiring professional assistance will be paid from the funds of the person who lacks capacity. Although you may hire help you cannot pay someone to take on your responsibilities as Deputy.
Will I be reimbursed for my expenses?
The Act states that you may be reimbursed for any reasonable expenses you incur whilst carrying out your Deputyship duties. For example, you can claim expenses for telephone calls, travel and postage.
The amount you are allowed to claim and what is deemed reasonable depends on the individual circumstances of each case. It is worth noting that if you claim over £500 per year the OPG may require you to justify your expenses. If your expenses are deemed excessive you may be responsible for repaying them, or in cases of extreme excess, the OPG may apply to the Court to cancel your Deputyship appointment.
It should be noted that expenses cannot be claimed for your time spent acting as a lay Deputy – this is called remuneration and can only be claimed if specifically approved by the Court. If you feel you should receive payment for the time you spend on Deputyship duties you must ask the Court in your initial application to be appointed as the Deputy.
You can find out more about your rights and responsibilities, by referring to the Mental Capacity Act 2005 - Code of Practice, or by contacting our team of Court of Protection specialists – for a free and confidential chat.
Legal Matters for Court of Protection Deputyships?
You’re clear on what your responsibilities are as a Deputy, but how do you make sure that the assets and well-being of the mentally incapacitated person you’re acting for are protected from the impact of any bad decisions made on their behalf? And how do you reduce your exposure to the impact of inappropriate decision-making?
How is a person who lacks mental capacity protected from financial loss?
If your Deputyship, as laid out by the Court, gives you the power to deal with the property and affairs of a mentally incapacitated person, you may be lawfully required to provide financial security for that person, in the event that your decisions result in any financial loss. There are numerous ways to do this, for example, you could open a guarantee bond, as long as it provides the level of security that the Court requires. You can verify the appropriate amount to secure by referring to your Court order, or seeking advice from your legal advisor. In general terms you will need to provide a level of security that is proportionate to the financial assets you are now in charge of.
How is a person who lacks capacity protected from abuse?
It is a criminal offence to ill-treat and/or willfully neglect any person lacking capacity. These offences apply to anyone who has any level of duty toward the incapacitated person, and this includes everyone from family and home care staff to Attorneys and Deputies. Penalties range from a fine to five years imprisonment.
Am I protected from liability as a Deputy?
If you adhere to the terms of your Court order and the laws surrounding Deputyships it is highly unlikely that you will be held legally liable. However, if you choose to act outside of your powers, even if you believe it is in the incapacitated person’s best interests, you will be liable.
If the Court decides that you have caused financial loss to the person lacking capacity they may decide to ‘call in’ the security bond, or approve the commencement of legal proceedings against you.
You can find out more about your rights and responsibilities by referring to the Mental Capacity Act 2005 - Code of Practice, or by contacting our team of Court of Protection specialists – for a free and confidential chat.
When not to make decisions as a Deputy?
You’ve been appointed as a Deputy under the Court of Protection and you’re clear on the decisions the Court order allows you to make on behalf of the person who lacks capacity. But how do you know when not to make a decision? And in what circumstances are you’re decision-making powers restricted?
The decision I want to make is not listed in the Court order. What can I do?
It’s likely that during your deputyship you will from time to time be faced with a decision that is not listed in the Court order, or that you are not sure whether you are entitled to make. When this happens you have two choices. You can either ask the Court to make the decision in question, or you can apply to have your powers extended so that you may make the choice yourself. It’s important, as with all decisions you make as a Deputy, that you consider which option is in the best interests of the incapacitated person. If it’s a decision that you feel unqualified or under-informed to make, you should do the relevant research before deciding whether you require a third party specialist to assist you.
What are the limitations on my powers during my deputyship?
As well as understanding the extent of your powers, it is equally as important to understand when they’re restricted. The specifics of your decision-making authority will be laid out in the Court order, however there are a number of limitations that apply to all deputies; you cannot make a decision where:
- The person in question has the capability to make this decision for him/herself.
- It relates to the physical restraining of the person, unless such restraint is immediately necessary in order to prevent them from harming themselves. In such a case the restraint must be reasonable and proportionate.
- The decision infringes on a decision made by an Attorney appointed by the person in question prior to their incapacity, save where new circumstances require a change in decision.
- The decision is one that denies the provision or continuation of treatment necessary to keep the person alive. Only the Court may make a decision in this situation.
As the Deputy, can I make family decisions on behalf of the incapacitated person?
When a decision needs to be made about a family matter, which would otherwise have been made by the incapacitated person, it’s important to seek guidance from the Mental Capacity Act 2005 – Code of Practice, as there are strict guidelines as to the decisions you can and cannot make. The Act lists several decisions under ‘Family Relationships’, which are excluded from a Deputy’s mandate, including:
- Consenting to a marriage or civil partnership
- Consenting to sexual relations
- Consenting to a divorce
- Consenting to the termination of a civil partnership
- Consenting to an adoption agency placing a child up for adoption
- Giving consent under the Human Fertilisation and Embryology Act 2008.
Elsewhere, the Code also states that as a Deputy you may not refuse another family member, or person in general, from having access to the incapacitated person if they request as much.
You can find out more about the limitations on your deputyship by referring to the Mental Capacity Act 2005 - Code of Practice, or by contacting the team here at Gillhams Solicitors – specialists in Court of Protection matters – for a free and confidential chat.