Changes: Applying to the Court of Protection

If a loved one has lost the mental capacity to make their own decisions, you need to apply to the Court of Protection to appoint, change or remove a Deputy or Deputies.

(This assumes the vulnerable person doesn’t have a Power of Attorney in place where they have already nominated someone – the Attorney – to make decisions about their property and finance and/or health and welfare.)

Some changes came in on 1 January 2023 when applying to appoint a Property & Affairs Deputy. Upfront, applicants should now notify three people who know the person affected by the application, such as relatives, a social worker or doctor. 

Before submitting their application, applicants should gather responses from the people who’ve been notified and send them to the Court together with copies of the notifications.

What’s more, applications can now be submitted online by solicitors and professional users. From February, everyone will be able to apply online. To do this, there are two new forms to be used. (The rest of the process remains the same.)

In summary:

• New applications must use the new Practice Direction and Court of Protection forms COP14PADep and COP15PADep. (These forms combine both notification and acknowledgement)
   
• There’s a new online service for solicitors/professional users from January 2023
   
• Personal applicants will be able to pay and apply online from February 2023

If you don’t use the new upfront notification process from 1 February 2023 onwards, your Property and Affairs Deputyship application will be returned.

Benefits of the new process

Benefits of the easy-to-use online service process include:

• Less paperwork to complete (no need for forms CoP20a and COP20b)
• Faster processing times compared with using the postal system
• Increased initial engagement reducing delays caused by objections
• Better accuracy of applications

What is the Court of Protection?

The Court of Protection was created under the Mental Health Act (2005). It has the powers to:

• Decide whether your loved one has the mental capacity to make financial or welfare decisions for themselves
• Appoint deputies who can make decisions for your loved one on an ongoing basis
• Give you permission to make a one-off decision for your loved one
• Handle emergency applications when you urgently need a decision to be made on your loved one’s behalf
• Make decisions about a lasting power of attorney or enduring power of attorney and consider any doubts about their registration
• Decide on applications for making statutory wills or gifts
• Make decisions about when your loved one can be deprived of their liberty under the Mental Capacity Act

What is a Deputy?

There are two types of Deputy:

• Property & Affairs Deputy can manage the vulnerable person’s bank accounts, pay their care fees and household bills, and buy or sell their residential property
• Personal Welfare Deputy can make decisions about where they live, and the care and (some of the) medical treatment they receive

Who can be a Deputy?

A Deputy has to meet certain criteria:

• Must be over the age of 18
• Must not have a criminal record
• Must not be declared bankrupt

They would usually be a relative of the person who lacks capacity but could be an individual solicitor or a trust corporation. Two or more people can be appointed to act as joint deputies.

How long does it take?

It can take up to six months for the Court of Protection to appoint a Deputy.

What does it cost?

It’s important to get it right, and (even though it’s improved) the application process is not always straightforward. That’s why we recommend you get help from one of our expert solicitors who deals with this sort of thing all the time. You will need to pay the court application fee of £371 plus our fees and any other costs we incur on your behalf (known as disbursements).

For more information

If you need help, the easiest thing to do is contact our expert, Sarah Robinson.

Watch the webinar

If you want to know more about upfront notification, you might find this one-hour webinar useful. It was recorded a month ago by HM Courts & Tribunals Service and shared on their YouTube channel.