Court of Protection

What is the Court of Protection?

The Court of Protection has jurisdiction to make decisions for adults who lack capacity concerning their property and affairs and their personal welfare.

The Court can grant Orders, appoint Deputies and give directions.

The Public Guardian

The Public Guardian’s role is to protect people who lack capacity  (appointed by statute and supported by the Office of the Public Guardian)

All applications made to the Court are made to the Office of the Public Guardian (the OPG) and dealt by the Court through the OPG.

The functions of the Public Guardian include:

  • To supervise Deputies
  • To maintain a register of Lasting Powers of Attorney, a register of Orders appointing Deputies and a register of Enduring Powers of Attorney
  • To receive reports from Deputies and Attorneys
  • To investigate complaints of Deputies and Attorneys
  • To provide reports to the Court of Protection

What is a Deputy?

Where there is no Lasting Power of Attorney (or Enduring Power of Attorney) in place and a person lacks the capacity to make one, a Deputy can be appointed by the Court to act under the Court’s authority to handle the affairs of a person who lacks capacity.

A Deputy can be given the authority to:

  • Manage property and financial affairs
  • Make health and personal welfare decisions

Who can be a Deputy?

The Court decides who will be a Deputy. A Deputy must be 18 years or over and must consent to the appointment.

Two or more Deputies can be appointed.  They may be appointed to work together or be given different roles by allowing one particular Deputy to make particular decisions.

Any willing family member or a friend of the person who lacks capacity can apply to be a Deputy. The Court will decide whether the applicant is suitable and has the skills required for the specific tasks they are required to carry out.

A professional Deputy, such as a Solicitor, can be appointed if there is no other suitable or willing person to act or where the family members or friends agree it is more appropriate, for example to appoint someone neutral.

Applying to the Court for a Deputyship Application

The application process may seem daunting and can be time consuming. Particularly if you have to care for a person who lacks capacity it can be a stressful time already.

Here is an outline of the application process:

Stage 1

You must determine whether you first need to apply to the Court for permission to make an application.

You generally do not need permission for appointments regarding financial matters.

You will need permission from the Court if the appointment relates to health and personal welfare decisions.

There are other matters where you will need permission to apply to the Court concerning Wills, gifts and Trustees.

Stage 2

You will need to determine which application pack you will need to use.

There are 10 different application packs depending on what your application relates to.

Stage 3.

You need to arrange for a registered medical practitioner, psychologist or psychiatrist to complete form COP3 – Assessment of Capacity. It is possible that the practitioner will charge a fee for this, which you can later recoup from the funds of the person who lacks capacity

Stage 4

Once you have completed the full application pack and you are in receipt of a completed COP3 – Assessment of Capacity you will need to send the application in duplicate (and retain a copy for yourself) to the Office of the Public Guardian with the application fee of £400 unless you qualify for the fee exemption or reduction. If so, then you must fill in Form COP44A

Stage 5

The Court will then issue your application and within the required time limits you must serve notice on the named Respondents, and notify relatives and any other named persons by way of Form COP15 and send Form COP5 to each person to complete.

You must also notify the person to whom the application relates personally and attempt to explain the application you are making.

Once you have notified each person you must then complete and send to the Court Form COP20 (Certificate of Service) for each person served.

Stage 6.

Depending on the type of application you have made and whether there are any objections the Court will decide:

  • To make a decision without a hearing
  • To give directions and the next steps to be taken
  • Confirm a date for a hearing of your application

When the outcome is determined from one of the above the Court will send you official copies of the Order.

You must inform the person to whom the Order relates by way of Form COP14 and then you must complete and return Form COP20 (Certificate of Service) to the Court within the time limits.

Supervision of Deputies

The Court will decide what level of annual supervision is required for each Deputy to be provided by the Office of the Public Guardian.

All Deputies must comply with the Mental Capacity Act 2005. In particular a Deputy must adhere to the five statutory principles of the Act when making decisions.

The Code of Practice provides information and guidance in support of the Act.

Application Fees

Deputy application fee £400

Supervision fees
– Dependent on the level of supervision set by the Court

Type Price
Type I (highest) £800 per annum
Type II A (intermediate) £350 per annum
Type II (lower) £175 per annum
Type III (minimal) £0 per annum

Appointment of Deputy fee £100
A one off fee for putting the Deputy on the register and for the risk assessment to determine the level of supervision.

The above fees are payable from the funds of the person to whom the application relates, however, it is likely that the initial application fee will be paid by the applicant and then be reimbursed.

A fee exemption or reduction may apply. This is based on the funds of the person who lacks capacity (the person to whom the application relates)

What you can expect from us

We offer a professional and efficient service. We can make the application for Deputyship on your behalf, from start to finish, which will allow you the time to concentrate on the needs of the person who lacks capacity.

We can offer full support in every aspect at what can be a very difficult time. Our fees are based on an hourly rate and are capped at the fixed rates as set out below.

Our Fees

Under the Court of Protection Rules 2007 the Court issues Practice Directions on fixed costs that a Solicitor can claim. As from 1st May 2009 Solicitors can claim fixed costs as follows:

Category I Work up to and including the date upon which the court makes an order appointing a deputy for property and affairs. £825(plus VAT)

The following fixed rates of costs will apply where the court appoints a Solicitor to act as Deputy:

Category III Annual management fee where the court appoints a professional deputy for property and affairs, payable on the anniversary of the court order.  
  (a) for the first year: £1,440(plus VAT)
  (b) for the second and subsequent years: £1,140(plus VAT)
  Provided that, where the net assets of P are below £16,000, the professional deputy for property and affairs may take an annual management fee not exceeding 4.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy.  
Category IV Where the court appoints a professional deputy for health and welfare, the deputy may take an annual management fee not exceeding 2.5% of P’s net assets on the anniversary of the court order appointing the professional as deputy for health and welfare up to a maximum of £500.  
Category V Preparation and lodgement of the annual report or annual account to the Public Guardian £225(plus VAT)
Category VI Preparation of an HMRC income tax return on behalf of P £225(plus VAT)