Court of Protection Solicitors
Many of us are unaware of the involvement of the Court of Protection and the reason for its presence.
The main aim of the Court of Protection is to make decisions on behalf of or affecting people who lack capacity. The Court can be involved in many ways, although the most common order they will make is to appoint deputies. The Court's power can extend to applications for statutory Wills and dealings with property, as well as making decisions about medical treatment and how someone should be looked after.
Applying to the Court of Protection
The process for applying to be someone's deputy can be difficult and time consuming. After all, the proposed deputy is asking the Court to make an important decision on behalf of someone they do not know. Therefore, a lot of information must be provided to the Court to enable them to make the right decision.
In addition to completing many forms, the person who lacks capacity must be personally notified. There is also a requirement to notify at least three members of the family who are likely to have an interest in being notified; those family members are set in descending order by the Court of Protection.
Once all the steps above have been completed, the Court of Protection will consider making a decision based on whether any objections are received. They may be able to release an order without further evidence, or they may investigate further points. In some rare cases, the Court will arrange for a formal hearing to take place.
Once the Court of Protection agrees to issuing an order confirming the appointment of a deputy, they will also set the amount of the security bond. The security bond works as an insurance policy with an annual premim required to be paid, prior to the order being released by the Court of Protection.
What is a deputy?
A deputy is appointed to look after the finances or welfare of the person who lacks capacity. The deputy is usually a family member or a friend. The deputy must be over 18 and have the skills to make decisions on behalf of someone else.
Becoming a deputy can be a burdensome responsiblity, and anyone looking into the possiblity of such appointment should seek legal advice.
What happens next?
Once the Court has released the order, the deputy's responsiblity continues on an annual basis. Annual accounts must be provided to the Court to show the expenditure made on behalf of the person who lacks capacity, as well as confirmation and information about major decisions that have been made in respect of finances and welfare. The Court may also arrange for the deputy to be supervised, which can include supervision visits.
- Will drafting
- Review of existing Wills
- Advice re provision for children, second families, spouses and civil partners, unmarried partners and other family members
- Advice re charitable gifts
- Advice re foreign and business assets
- Advice re Will trusts
- Inheritance Tax advice.
- Advice re Trust creation and ongoing management
- Preparation of trust deeds and other trust documentation
- Declarations of Trust
- Termination of trusts.
Probate and Administration of Estates
- Advice re the terms of the Will or intestacy rules where there is no Will
- Obtaining values for the various assets and liabilities in the estate, notifying the various institutions and obtaining all necessary estate information
- Obtaining a grant of probate or letters of administration as appropriate
- Dealing with and advice re Inheritance Tax, Capital Gains Tax and Income Tax, liaising with HMRC
- Notifying and liaising with the beneficiaries of the estate
- Preparing a deed of variation or a deed of disclaimer in relation to the estate
- Selling or transferring the various assets due to the beneficiaries
- Dealing with foreign assets and Wills
- Advice re estate disputes and claims against an estate