The Role and Scope of The Court of Protection
For many years the workings of the Court of Protection have been a mystery but this is changing due to growing awareness of its role and increased reporting of cases, says Harleen Hanson, Head of the Private Client Department at Fraser Dawbarns LLP
The Court of Protection is a relatively new addition to the English legal system having only been created following the introduction of the Mental Capacity Act 2005.
The Court of Protection is applied to usually as a last resort where loved ones have lost their capacity to manage their financial affairs and to make decisions regarding their health and welfare. In such cases where the individual is no longer able to execute a Lasting Power of Attorney (LPA) someone would need to be appointed to manage their affairs and the only way to do this currently, is for that individual’s friends, family or professional advisers to apply to the Court of Protection to be appointed as the individual’s deputies.
The process is costly and lengthy with a number of documents having to be drafted, information collated and Orders served. The average cost for a Deputy application can be in the region of £1600. This includes the Court fee, the doctor’s fee for issuing a document confirming the individual’s lack of capacity and also the legal costs for actually making the application. There is also a form of insurance that needs to be paid for by the deputy, referred to by the Court as, “the bond”.
The Court will continue to be involved even after appointment of the deputy and may require annual reports or ad hoc applications for matters such as, for example, the sale of the individual’s home. All of these will involve additional cost.
For many people making a Lasting Power of Attorney may seem the more preferable option. This is not, however, the case for all, as there will be individuals who do not have anyone they would feel comfortable appointing as the attorneys or otherwise burden with the role. In these cases, individuals may appoint a professional attorney under a Lasting Power of Attorney or simply do nothing at all. If the decision is to do nothing, and that individual loses capacity, it will be for the Court to determine who is appointed and in certain instances if there is no-one who wishes to do so, then Social Services will step in.
The Court of Protection is also involved in protecting the donor (as they are referred to in an LPA), where there have been Lasting Powers of Attorney executed but there is a suggestion that the attorneys have not been acting in the donor’s best interest. The concept of acting in the best interest of the individual is something that is central to the role of the Court of Protection. The Court’s role is not only to protect the donor against the negligence or mismanagement of their affairs by their attorneys but also to support attorneys where they are being falsely accused and in certain instances providing them with general guidance as to their role.
Finally, the Court is also becoming involved in decisions relating to an individual’s health and welfare. Certainly at Fraser Dawbarns LLP we have seen an increase in the Court’s involvement in decisions relating to matters such as the contact that persons who lack capacity, have with others, i.e. family members, and also in relation to matters such as Deprivation of Liberty Safeguards. What is clear is that the role and scope of the Court of Protection is increasing over time.
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice. Fraser Dawbarns LLP are always happy to provide such advice.
Harleen Hanson is a Member and Head of Fraser Dawbarns LLP’s Private Client department, which specialises in Wills, Powers of Attorney, Trusts, Administration of Estates, Tax and Court of Protection work.