Court of Protection FAQ | Irwin Mitchell
What Is The Court Of Protection?

The Court of Protection helps people who are mentally incapable of making their own decisions.  It does this by making decisions for them about their money, property, health or welfare. 

The Court can also give these powers to someone else  if there is a need for decisions to be made on an ongoing  basis because the person  can no longer make their own decisions.  If the Court gives these powers to someone else, they will be known as a Deputy.

How Do I Apply To The Court Of Protection?

If someone you care about loses the ability to make their own decisions you can apply to the Court of Protection for permission  to make decisions for them.  To apply, there are some forms that will need to be filled in and a doctors certificate will be required to confirm to the Court that the person cannot make decisions for themselves.

It is very important that those 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 to help them with all their financial and other decisions. 

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.

Is It Possible To Make An Application In An Emergency?

An urgent application to the Court of Protection can be made if your friend or relative might lose a lot of money or suffer physical or mental harm if the application is not dealt with quickly.  The process is different to a standard application.  We can give you all the help you need in completing the right forms and getting them dealt with by the Court quickly.

What Can I Expect From The Court?

The Court of Protection has a Charter that sets out how the court staff will help you when you visit or apply to the Court and how to complain if you are unhappy with the service you received at court.

Who Can Be A 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 asking to make, you might need the Court’s permission to apply to become a deputy.

A deputy could 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 if the amounts involved are very large. Solicitors are also appointed if there are very complicated decisions to be made.

What Are The Duties Of A Deputy?

Deputies are appointed to make decisions for someone else about finances, property, health or wellbeing or any combination of these. This carries a huge responsibility.

When making a decision on behalf of your friend or relative as their deputy you must:

  • Make decisions that are in their best interests
  • Only make a decision if your friend or relative cannot make it for themselves
  • Only make decisions that the Court has said you can
  • Keep in mind the guidance in the Mental Capacity Act 2005 Code of Practice
  • Make your decisions with a high standard of care

You may be required to provide a report to the Court on a regular basis about the decisions you have made and the reasons for them.

What Decisions Can I Make As A Deputy?

The Court will tell you what decisions you can make. If the friend or relative you are acting for has a change in their circumstances (e.g. if their condition gets worse), you can apply to the Court for the power to make more decisions if necessary.

You must not make a decision if you believe that your friend or relative can make that decision themselves. There are some limits on what you can and cannot do as a Deputy: you cannot make a Will for your friend or relative, make large gifts of their money or put their money or property into your own name.

If you are unsure of what decisions you are able to make, please contact us for advice.

Should I Keep A Record Of My Actions As A Deputy?

It is very important that you keep a written record of any major decisions you have made on behalf of your friend or relative as their deputy. Major decisions might include changes to their living arrangements or selling their home to pay for nursing home fees. As well as making a note of what the decision was, you should write down why you made that decision. Keep any paperwork, too.

I Have A Deputyship Order That Has/Is About To Expire, What Do I Do?

If the person the order relates to is still unable to make their own decisions, you will need to make a new application to the Court of Protection if you want to continue with your duties. You can also apply to nominate somebody else to the role as long as they agree to take on these duties. It is advisable to make a new application to the Court of Protection before your current Deputyship Order expires so that you can continue to act for that person.

I Think That Someone I Know Is Financially Abusing A Friend/Relative Of Mine. What Do I Do?

You could contact the Citizens Advice Bureau. Or you could telephone your local Social Services and ask to speak to someone in their vulnerable adults’ team. There are also charities that can help, such as Action on Elder Abuse.

We also have experience of helping people in this situation and can also advise about whether an application to the Court of Protection could help, so contact us for advice. You could contact the Citizens Advice Bureau or your local social services. Charities such as Action on Elder Abuse may also be able to help. We also have experience of helping people in this situation, so contact us for advice.

I Am Deputy For My Relative. They Do Not Have A Will, How Do I Go About Making One?

You cannot make a Will on behalf of your relative, but you could apply to the Court of Protection to make what is known as a Statutory Will. Find out more about Statutory Wills

I Have Received Compensation For A Personal Injury And Am On Benefits, Do I Have To Give Up My Benefits?

You can only get state benefits if you have very little income and very little by way of savings. If you have received compensation for a personal injury the benefits agency will see that money as being savings you own. Depending on how much compensation you have received, you might lose some or all of your benefits.

However, your compensation can be put into a Personal Injury Trust so that the benefits agency does not think of it as savings. That way, you can keep your state benefits.

How Do I Set Up A Trust?

This is something you need a solicitor for. Whether you have received compensation through us or another solicitor or claims handler, we can write a legal document called a Trust Deed.

You will need to choose at least two people to be Trustees, who will be in charge of looking after the money in the Trust. The Trustees must be 18 or over and you can be one of the Trustees.

What Do Trustees Do?

The Trustees must set up a special account at a bank or building society known as a Trust account. The money from your compensation must be put into that account and kept separate from any other money or accounts that you own.

The Trust account will be in the names of the Trustees and should have a name that identifies it as your trust (e.g. the Joe Bloggs Trust).

All cheques and all transactions must be authorised by your Trustees, who have the legal power to manage your Trust account and must handle your money for your benefit. The Trustees must set up a Trust account at a bank or building society. The money awarded to you as compensation must be held in this account, separate from your personal finances.

Can I Be A Trustee Of My Own Trust?

Yes, but you must also have at least one more Trustee. All Trustees have to agree about what will happen to the money in the Trust account. You need to be sure that you trust the people who are your Trustees to act in your best interests.

How Much Money Can I Have Outside The Trust And Still Claim Benefits?

At the moment, you (and your partner) can have up to £6,000 before you start to lose your state benefits. That £6,000 does not include any money held in your Trust account.

If you keep all of your compensation in your Trust account and have less than £6,000 in any other accounts, your state benefits will not change.You and your partner can have £6,000 between you outside the Trust and still claim benefits.

What Happens To Any Interest Earned By The Trust?

Any interest made by the Trust account has to stay in the Trust account.

What Can Money In The Trust Be Used For?

The money in the Trust must not be used to pay for ordinary living expenses such as food, household fuel bills, ordinary clothing or ordinary footwear. Money held within your Trust should be used to pay for luxury or extraordinary items, such as specialist equipment.

How Do I Pay For Things With Money From The Trust?

You can ask the Trustees for a cheque from the Trust account, or if you cannot pay by cheque you can pay for the item yourself and ask the Trustees to pay you back from the Trust account.

Will Money Spent From The Trust Be Taken Into Account By The Benefits Agency?

No. Money spent from the trust will not be taken into account as long as the money has been used properly.

Can Other Money Be Put Into The Trust?

You can only put money that has come from compensation for a personal injury into your Trust account.

Will I Have To Pay Tax Based On Money In The Trust?

Any interest that is paid on your trust account is classed as income, and so it will be included when you are assessed for income tax. You might also be liable for Capital Gains Tax (depending on where your trust money is invested).

Capital Gains Tax does not apply to money held in a bank or building society account, but if your compensation money was put into shares or other investments instead, you might have to pay Capital Gains Tax.

The tax office would need to see a copy of your Trust deed and then they can write to you about any tax you have to pay.

Will Money In The Trust Be Taken Into Account For Nursing Home Or Residential Fees?

No, Trust money is not looked at when the council works out whether you have to pay for your residential or nursing home fees.

What Happens To Any Money In The Trust When I Die?

When you die, any money left in the Trust account will be part of your estate. That means that it will go to whoever you have put in your Will as your beneficiaries – the people you want to inherit your estate. If you do not have a Will it will go to your next of kin under the rules of intestacy.

When Can I Make A Lasting Power Of Attorney?

You can make a lasting power of attorney at any time, as long as you have mental capacity to do so: you must be able to understand the decision you are making. A Lasting Power of Attorney allows you to set out how you want your healthcare or financial affairs to be managed if you become unable to manage them yourselves in the future.

Who Should I Choose As An Attorney?

You should choose someone you trust, and who you believe will make decisions for you that are in your best interests. People normally choose family or friends but many prefer to choose a solicitor. You can choose anyone as long as they are aged over 18 and have mental capacity.

Are There Different Kinds Of Lasting Powers Of Attorney?

Yes, there are Property and Affairs Lasting Powers of Attorney which allow you to chose someone to manage your finances and other property and Health and Welfare Lasting Powers of Attorney which allow you to chose someone to make welfare decisions for you if you are not able to this yourself. You can choose to make one or both of these. You must make separate Powers of Attorney for each kind of decision.

You can choose the same attorney to make decisions to do with your finance and property and your health and welfare, or you can choose different attorneys for each.

Can An Attorney Make Gifts?

Attorneys can make gifts of your money and property but their power is limited. The Court can authorise attorneys to make extra gifts in certain circumstances.

Can I Have More Than One Attorney?

Yes, you can choose more than one attorney. You can decide whether your attorneys must make their decisions together or whether they can make their own decisions separately.

How Do I Make A Lasting Power Of Attorney?

There are a number of forms that you need to fill in. To give your attorney the powers you want them to have, the forms have to be sent to the Office of the Public Guardian to be registered. The Office of the Public Guardian will check through the forms and make sure that they have been filled in and signed properly.

It is usually recommended that you send the forms in as soon as possible to avoid any delays because it can take several weeks for the Office of the Public Guardian to process the forms.

What Happens If I Don’t Make A Lasting Power Of Attorney And I Lose Mental Capacity?

Your family or friends might need to apply to the Court of Protection to appoint a Deputy to make your decisions for you. That takes the choice and control out of your hands and can cause a lot of delay and stress for your loved ones.

Who Is Told About My Lasting Power Of Attorney?

You can choose who is told, so you might want to tell family members or close friends. These people can raise concerns about your Lasting Power of Attorney if they wish to do so.

My Mum Has Dementia/A Stroke And Is In Hospital/A Home - Can I Take Out A Power Of Attorney?

Only if she has the mental capacity needed to take out the Power of Attorney. If her condition means that she cannot do so, you may need to apply to the Court for a Deputyship instead.

What Is A Statutory Will?

To make an ordinary Will, there are rules that say that you have to be of ‘sound mind’. To be of sound mind, you have to understand what you own, what making a will actually means and who your loved ones are even if you decide not to leave them anything.

If you are not of sound mind you cannot make a Will and if you do write one it will not be legal or valid.

But if someone is not able to make a Will because they do not have the mental capacity to do so, a statutory Will can be made for them.

Who Can Make A Statutory Will?

The Court has to give permission for a Statutory will. Statutory wills can be made by Deputies appointed by the Court of Protection, Attorneys or someone who is likely to inherit from the person who is unable to make their own Will when that person dies.

How Do I Make A Statutory Will?

You (acting as Deputy, Attorney or potential beneficiary) need to complete a number of application forms and make a statement saying why you think the Will should be written as you suggest. The application is sent to the Court of Protection which will decide whether the Will is appropriate. Making a statutory Will can be complicated because of the Court requirements and you should get legal advice.

Will I Have To Go To Court?

Only if there are serious disagreements between beneficiaries and/or the people making the Will.

Can A Will Be Changed If The Person The Will Relates To Does Not Have Capacity To Change It?

Yes, if you are a Deputy or have power of attorney, you could apply to the Court of Protection to change a Will that your loved one made before they lost mental capacity. You might need to do this if your loved one’s financial circumstances have changed a lot since they made the will, or if key beneficiaries have died.

If you would like to change an existing Will, please contact us so we can advise and guide you through the legal process.

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