Orders of the Court of Protection & Deputyship
What decisions can the court make?
The Court of Protection’s jurisdiction will be derived from the
Mental Capacity Act 2005 (and Rules). Under the Mental Capacity
Act, the Court has the power to:
- Make decisions about the personal welfare or property and
affairs of people who lack the capacity to make such decisions
themselves
- Make declarations about a person’s capacity to make a decision,
if the matter of whether they can make a decision cannot be
resolved informally
- Make decisions in relation to serious medical treatment cases,
which relate to providing, withdrawing or withholding treatment to
a person who lacks capacity
- Appoint a Deputy to make ongoing decisions on behalf of a
person who lacks capacity, in relation to either the person’s
personal welfare or property and affairs
- Make decisions about an LPA or EPA, including whether the power
is valid, objections to registration, scope of Attorney powers and
rights.
When should an application be made?
For personal welfare matters, in most cases it is expected that
the core principles of the Act and guidance in the Code of Practice
should be enough to help people take action or make decisions in
the best interests of someone who lacks capacity to make a
decision about their own care or treatment or find ways of settling
disagreements about such decisions/actions.
Application to the Court may be required for:
- Particularly difficult decisions
- Disagreement that cannot be resolved any other way
- Situations where on-going decisions may need to be made about
the personal welfare of the person who lacks the capacity to do so
for himself or herself.
In matters relating to finances, property & affairs, an
Order of the Court will usually be necessary unless:
- The individual’s only assets are state benefits or,
- They have previously made an EPA or LPA for Property that is
still valid
Who can make an Application?
Generally, potential applicants to the Court must get the
permission of the Court before doing so, although this will not be
required for applications relating to property matters.
Those who do not have to seek permission:
- The Public Guardian and Official Solicitor
- A person who lacks or who is alleged to lack capacity in
relation to a specific decision or action
- Where an application is made concerning an LPA. the Donor or
their Attorney
- A person named in an existing Court order relating to the
application.
The Court Rules also set out specific types of case where
permission is not required.
What forms are needed to make an application?
The particular forms to be used when making an application to
the Court will depend on whether permission to apply is required
and if the application relates to property & affairs or
personal welfare.
The following is a list of the main Court application forms:
- COPI Application Form
- COPI A Supporting information for property & affairs
applications
- COPI B Supporting information for personal welfare
applications
- COP2 Permission Form (if required)
- COP3 Assessment of Capacity Form
- COP4 Deputy’s Declaration
Other Court forms include:
- COPS Acknowledgement of service/notification
- COP7 Application notice
- C0P22 Certificate of suitability of litigation
friend
- C0P23 Certificate of failure or refusal of witness to attend
before and
- C0P25 Affidavit
- C0P37 Skeleton argument C0P42 is a guidance booklet Making an
application to the Court of Protection’.
NB The Court will require two copies (i.e. the original plus
one copy) of each form and document you file
Possible Outcomes of an Application
In cases of serious dispute, where there is no other way of
resolving the matter of the authority of the Court is required in
order to make a particular decision or take a course of action, the
Court make a decision to settle the matter. If there is a need for
on-going decision-making powers and there is no valid EPNLFA, the
Court may appoint a Deputy to make future decisions. The deputy
will only be able to make decisions about matters specified in the
Court Order appointing them.
In deciding the type of order to issue, the Court is bound by
the Acts principles.
Additionally, the Court must follow two further principles,
intended to make any intervention as limited as possible:
- Where possible, the Court should make the decision
itself in preference to appointing a Deputy.
- If a Deputy is to be appointed, their appointment
should be as limited in scope and for as short a time as
possible.
A Deputy is:
An individual appointed by the Court to make decisions on behalf
of a person who is considered to lack the capacity to do so, The
decisions can be connected with the Client’s property & affairs
and/or health & welfare depending on the circumstances of each
case.
The Public Guardian will supervise
deputies.
Roles & Responsibilities:
Only able to make decisions they have been given the authority
to make depending on the specifics of each case.
- Must act in best interests & follow statutory principles of
MCA
- Must have regard to the Code of Practice
Property and affairs deputies will also have a duty to:
- Keep accounts and keep the individual’s money & property
separate from their own finances
Supervision
After a Deputy is appointed, an assessment is made of the
circumstances of the case and a supervision regimen allocated. A
Deputy can appeal against the allocation of a particular
supervision type. Supervision regimen will be subject to regular
review by the OPG, Fees are payable annually after the setup are
based on the supervision time.
- Type I: where a greater degree of supervision is
appropriate, this may include review of Deputies financial
decisions, visits to client to ensure client is receiving
appropriate benefit from assets.
- Type II: a light touch approach. There may be a
requirement to lodge some form of account or report. The Deputy
will be supported by easily accessible customer support and advice
service.
- Type Ill: low-level assets (under £16000), customer
support & advice service available.
Concerns about the actions of a Deputy should be brought to
the OPG. Deputies are accountable to the Court and the Public
Guardian has a statutory duty to investigate representations about
the Deputy.
Court of Protection Fees:
Single fee for all applications of
£400
Introduction of a £500 oral hearing
fee
Office of the Public Guardian:
- Deputy set-up (one-off) -£125
- Type I supervision (annual) -£800
- Type II supervision (annual) -£175
- Type Ill supervision (annual) - £nil
People in receipt of the follow English means tested
benefits will be exempted from fees:
- Income support
- Income-based job-seekers allowance
- Pensions guarantee credit
- A combination of working tax credit and either child
tax credit or
- disability element or severe disability
element
- Housing benefit
- Council tax benefit, and
- Are not in receipt of damages awards greater than
£16,000.
Even if an automatic exemption from payment of fees is refused,
this will not prevent a further application for remission being
made. In addition, the Court or OPO will have the power to remit or
postpone the payment of the whole or part of any fee for those
whose gross income is less than £16,000 or where, in its opinion,
hardship maybe caused or the circumstances are otherwise
exceptional.
This document/publication/leaflet about ‘Orders of the Court of
Protection & Deputyship’ can be made available in a range of
community languages, large print, Braille, on tape, electronic and
accessible formats from the Information Officer (information_officer@bathnes.gov.uk)
- Tel (01225 477983) Minicom (01225
477043) |
