Court of Protection

The Court of Protection has the power to grant two types of deputyship order:

• A deputy who is responsible for handling affairs concerning finances and estate – e.g. paying bills, managing savings and maintaining pension pots.
• A deputy who is responsible for the individual’s welfare, e.g. medical treatment and care.

Any appointed deputy must act in the best interests of the individual and provide them with a high standard of care.

While family members are legally permitted to apply for the role of deputy, many (and sometimes the court) decide to appoint a professional deputy instead, such as a Court of Protection solicitor. It may be that the individual without capacity’s daily affairs are simple to manage, but because they’ve suffered an accident, injury or form of medical negligence, it’s best to seek the help of a professional deputy who can properly handle the person’s finances and make any decisions on their behalf. Many family members might find it stressful and daunting, and prefer to enlist the help of an expert who can make decisions with the right knowledge.

If you are family, and you were to apply for a deputyship order for your family member, you’d be what’s known as a “lay deputy”. There are many rules and regulations that you have to follow and like all deputies, you have to act in the best interests of the person you are looking after. These are all designed to keep the individual’s best interests paramount, and to minimise any further suffering or difficulty for them. You are not allowed to hold their money in your name, and nor are you allowed to hold any of their property in your name. Their assets remain theirs; a deputy is simply a decision-maker.

To be a lay deputy, you must:

• Be at least 18 years of age;
• Never have been declared bankrupt
• Not have a criminal record;
• Be of good, kind character.

If you do not comply with the rules of deputyship, you could face fines or time in prison, particularly if you are guilty of abuse or neglect.

If someone suffers an injury or medical negligence, and is successful in claiming compensation, it may be a good idea to set up a Personal Injury Trust. These may exist instead or alongside a deputyship.

Keeping compensation in a personal injury trust means the compensation amount is disregarded from means testing. It allows for an individual to receive the compensation they deserve and the benefits they need ongoing, such as income support, housing benefit, jobseeker’s allowance or employment allowance.

There is a “one-year disregard”, where for the first 52 weeks after the claim has settled, the compensation amount isn’t considered during means testing. It’s best to set up a Personal Injury Trust during this 52-week period.

Keeping the compensation in a trust also allows for careful planning away from other finances. If the individual lacks capacity now due to their accident or negligence, the trustees would be able to make sure the compensation covers all the things it needs to, such as further medical treatment or rehabilitation.

There are also trusts you can set up for children if they are awarded compensation for personal injury or clinical negligence claims. The trusts can be accessed by a parent, guardian or solicitor, and can continue after the child turns 18 if the family wishes. The compensation in the trust can be used for medical treatment and for maintenance of a child’s ongoing needs.

If someone lacks mental capacity and they haven’t already made a will, or that will is out of date, it may be that a deputy seeks to make a statutory will on their behalf.

If a deputy or attorney believes it is in the person’s best interests, they can apply to the court for a statutory will to be made for someone. It’ll enable that person’s wishes to be carried out even though they cannot sign a will.

You can also apply to the courts to have changes made to an existing will. This would be needed if your loved one expressed a desire to make said changes before they lost capacity, but never got round to doing so. Alternatively, if a change of circumstances means that a change to the will is needed.

It can be difficult as a deputy to be in the position of handling a statutory will for your loved one. These situations can involve family politics, for example if some family members who are named in an original will aren’t comfortable with changes being made. The Court of Protection will hear from anyone who has an interest in either the existing or new will, and will decide on the terms of the statutory will.

Although difficult when the funds have been awarded as part of a claim, we can prepare Statutory Gifting application in circumstances where relevant – for example where there is a very large award and limited life expectancy we can apply to gift some of the funds to mitigate inheritance tax in the future.

The Court of Protection usually decides health and welfare applications on a decision-by-decision basis, and we can apply for issue-specific decisions – e.g. authorising suitable medical treatment. It is also sometimes possible to appoint a general Health and Welfare deputy.