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Court of Protection - What do you do if a family or friend loses capacity but does not have a Lasting or Enduring Power of Attorney

The Private Client Department is often instructed by clients concerned about their vulnerable friends or relatives and how to assist them in managing their personal or financial affairs.

If the person has already lost capacity and does not have an Enduring or Lasting Power of Attorney in place, then the only way properly to protect this person is to apply for a Deputyship. This is when the Court appoints an individual to look after a vulnerable person’s affairs on that person’s behalf.

There are two types of Deputyship: a Property and Financial Affairs Deputy and a Personal Welfare Deputy. An application to the Court can be for one or both types of Deputyship, and you can make both applications at once.

A decision on whether to approve a Deputyship is made by the Court of Protection, which is a special type of Court in which judges makes decisions about the welfare of people who have lost capacity. Most Deputyship applications are decided without the need for a physical hearing, and usually only need a physical appearance if there is a dispute on whether an Order should be made.

Nevertheless, applying for a Deputyship is a decision that should not be taken lightly, as Deputies must produce an annual report to the Court and prove that they are acting in the best interests of the vulnerable person.

How to apply for a Deputyship?

The applicant must fill in a number of forms about themselves and the person for whom the Deputyship is required. They must also identify interested parties to become involved in the application, either as a respondent, who has a direct interest, such as a child of that person, or as a notified party, who may not have a direct interest but should be told about the proceedings, such as a social or care worker.

The applicant must also ask a relevant practitioner, such as a doctor, to complete an assessment of capacity. Unlike other Court proceedings, in order for the Court to exercise its Deputyship powers it must be satisfied that the person whom the application concerns, does lack capacity to deal with matters themselves. The assessment is the document that assists the Court in deciding this issue.

The applicant must also make a series of promises to the Court that they will look after the person’s affairs appropriately and that all of their decisions will be in that person’s best interests. Once all these forms have been completed, the application can be sent to the Court and the proceedings will begin.

What happens next?

The Court will return your application to you and instruct you to inform the necessary parties you have listed in your original application forms.

If you have named someone as a Respondent, you must then send them a copy of the whole application. This is known as service of the document. If someone is only to be notified, then they are sent a form telling them an application has been made, without the full details, and inviting them to comment on it. The person whom the application concerns, must also be told of the application, even if their limited capacity may mean that they do not understand the paperwork that you are presenting to them.

Notified parties have a time limit to decide what to do, set by law. In the event that no-one objects, the application will be referred to a judge for a decision. If someone objects, the Court will commence its case management protocol to manage the case through to a final hearing.

Being awarded a Court Order

If you are successful, and nobody objects to your application, the Court will issue you an official Court Order highlighting what you are or are not allowed to do on behalf of the person whom you have been appointed to represent.

You will be asked to pay what is known as a Deputy Bond to the Court to secure your appointment. This is to protect the finances of the person whom you are representing. After payment of this Bond, you will be ready to represent your friend or family member in securing their best wishes moving forward.

Do you need our help?

The process of completing the Court of Protection application forms can be daunting and confusing, and our Private Client team can assist you with this. Alternatively, if you have concerns that a person who has been appointed as a Deputy may be abusing their powers, or not acting in a person’s best interest, please contact our Contentious Probate department who will be able to assist you in reviewing your options moving forward.

Please contact our teams on 0118 958 9711. In some circumstances we can offer an initial £95.00 fixed fee meeting to discuss how we can best help you.

Further Reading:

Appointment of executors and consideration of their capacity

Take action now to avoid finding yourself in a #FreeBritney situation

Can my Will be challenged?

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Get in touch

Hilary Buckle offers a fixed fee initial meeting of one hour to discuss your personal circumstances, your options and your next steps, at a cost of £95 (inc VAT).

Hilary specialises in all aspects of private client work, including Wills, trusts and probate matters. She is a member of the Thames Valley branch of the Society of Trust and Estate Practitioners, Solicitors for the Elderly (SFE) and an associate member of ACTAPS (the Association of Contentious Trust and Probate Specialists).

If you would like to know more or arrange a fixed fee appointment, please email her at [email protected] or call her on 0118 958 9711.

"barrettandco" and "Barrett & Co" are trading names of Barrett & Co Solicitors LLP, a Limited Liability Partnership incorporated in England and Wales under registration number OC356263, with registered office at Advantage House, 87 Castle Street, Reading, Berkshire, RG1 7SN. Barrett & Co Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority (SRA Number 549694).

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