court of protection

December 2023

The Court of Protection, Fees and the Role of a Deputy In December 2023

In this article we have broken down what the court of protection is as well as the process, the deputyship fees and the order.

Topics that you will find covered on this page

1. What does a Court of Protection do?

The Court of Protection (COP) makes decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made.

When a family member, friend or loved one lacks mental capacity to make their own decisions it can be a traumatic time for all involved.

It will be difficult or impossible to deal with any assets in their name as authorities will only deal with the person who lacks mental capacity.

In an ideal world, the incapacitated person will already have in place valid health and welfare lasting powers of attorney as well as property and financial affairs lasting powers of attorney, appointing chosen people to step into their shoes and manage their affairs if the need arises.

But making lasting powers of attorney is not always possible. The person may already lack mental capacity when such documents would be useful or if there are powers in place then perhaps they are no longer fit for purpose.

Here is a short video explaining more about the Court of Protection.

In order for a person to take control of someone’s affairs, they will need to apply to the COP.

The www.gov.uk website summarises what the COP is responsible for:

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

Court of Protection Timescales

Individuals who lack the mental capacity to make decisions for themselves are represented by the Court of Protection. Depending on the intricacy of the case, the importance of the issue, and the court’s current workload, the length of the Court of Protection processes might vary significantly. 

Some critical choices can be made in a matter of days or even hours. Cases that are more complicated or that call for a hearing, however, may take longer. It’s also critical to remember that even after a decision has been reached, there can still be a delay in getting the official order. 

To account for any potential delays, it is usually best to have legal counsel and begin the application procedure as early as feasible. 

2. Deputyship application

The foundation of any COP application is an assessment of the mental capacity of the individual to whom the application relates, usually referred to as the “patient” in court. There are also court of protection costs that you will have to pay.  More information on this is below.

Once the COP is satisfied the patient lacks mental capacity, they will then look at the deputyship application being made and decide whether to issue a court order. 

The COP will want to hear all sides of the story and may direct relatives, friends, carers or other interested parties to be made aware of the application.

Do I need permission to apply for a deputyship order?

Yes, you need permission to apply for a deputyship order. When applying to be a deputy, you are required to apply to the Court of Protection. Court of Protection applications involve seeking legal authority to act on behalf of someone who lacks mental capacity.

Permission from the court is necessary to initiate the process and establish your eligibility to become a deputy. This ensures that the court can assess your suitability and make informed decisions in the best interests of the individual.

Therefore, it is essential to apply to the Court of Protection and obtain permission before proceeding with a deputyship application.

How much does a deputy bond cost?

Depending on the valuation of the estate being managed and the degree of risk determined by the bond provider, the price of a deputy bond may change. It is typically a small percentage of the estate’s value, and it’s advisable to obtain quotes from multiple bond providers to get an accurate estimate.

3. What is a court of protection deputy?

So what is a deputyship? 

A court of protection deputy is important in the UK legal system.

They are a court appointed deputy, appointed by the Court of Protection, an independent judicial body, to manage the affairs of someone who cannot do so themselves due to a mental disorder or incapacity.

This could be because they have been diagnosed with:

  • dementia
  • stroke or other degenerative condition.

Or their decision making capacity may have become impaired through traumatic injury; or they may lack the mental capacity to make decisions for themselves due to age.

The court of protection deputy is responsible for making decisions on behalf of someone who does not have the capacity to do so themselves.

This includes making decisions about finances, property and welfare matters such as medical care and care home placements. The deputy must act in the best interests of the person they are appointed for, as determined by the Court of Protection.

Deputies must be over 18 and have no criminal record or any other background that could suggest a conflict of interest.

They will usually be family members, social workers or professional trustees. The court of protection deputy must act according to the Mental Capacity Act 2005 and follow relevant codes of practice when making decisions on behalf of someone who lacks capacity.

This includes getting consent from others such as family members or doctors where possible, ensuring that all decisions are made in the best interests of the person they are appointed for and taking into account their wishes and feelings if it is known what these may be. They must also keep accurate and up-to-date records of their decisions.

The role of court of protection deputy is an important one, with the potential to have far-reaching consequences for someone who lacks the capacity to make decisions for themselves.

It is vital that any individual or organisation taking on this responsibility has the right skills, experience and understanding of the relevant legal framework. This will ensure that decisions are made in accordance with the law and in the best interests of those they are appointed to represent.

4. What can you do as a deputy?

There are 2 types of deputy that you can apply for.

a. Property and financial affairs deputy

Under a property and affairs court of protection order, you as the appointed deputy can take full control of your loved one’s financial affairs. You can streamline their accounts, pay off all their debts, and apply for benefits that they may be entitled to.

You can also sell their home if they are in residential or nursing care and their care fees need to be paid from the sale proceeds.

b. Personal welfare deputy

As opposed to the financials, you will have responsibility to make decisions about the individual’s medical treatment. This video gives you more information on what the role of the deputy is.

What is deputy power of attorney?

Deputy power of attorney is a legal document in which an individual legally authorises someone else, known as the “Deputy”, to make financial and/or welfare decisions on their behalf in the event that they are not able to do so themselves.

This can be due to age or illness, and it is intended to ensure that the individual’s affairs are managed according to their wishes.

In the UK, Deputy powers of attorney are regulated by the Court of Protection, which ensures that any decisions made demonstrate due consideration for the individual’s best interests.

The Deputy will usually have a duty of care towards the person whom they represent and may be personally liable for any losses arising from the mismanagement of assets.

What expenses can a court of protection deputy claim?

Generally any reasonable expenses incurred in carrying out your duties as a deputy can be reimbursed upon providing sufficient proof.

Court of protection deputy expenses might include travel costs or professional fees for advice from solicitors or accountants.

You may also be entitled to an allowance if you are taking on additional responsibilities such as meeting with healthcare professionals or attending court hearings. These all count within deputy expenses.

It is important that all claims comply with the Office of the Public Guardian’s (OPG) guidelines and are reasonable and necessary. The OPG may require additional evidence to support your claims, so you will need to keep records of all expenses incurred.

In addition to reasonable costs being reimbursed, deputies can also claim for a remuneration fee from the person they are acting on behalf of in order to cover their time and effort as a deputy.

This is subject to approval by the court but must be included if requested in the court order or annual review documents. Deputies should pay particular attention to any tax implications of such fees as they may be taxable income.

Can court of protection deputies claim expenses for deputyship applications?

Court of Protection deputies can typically claim expenses for deputyship applications. The cost of deputyship, which includes deputyship costs such as court fees and legal expenses, can be reimbursed by the court.

When individuals apply to be a deputy, they may incur various expenses throughout the process, and these costs can be reimbursed by the court if they are deemed reasonable and necessary.

It is advisable for prospective deputies to keep track of their expenses and consult with a court deputy or legal professional to ensure proper documentation and reimbursement procedures are followed.

court of protection deputy

5. What are the Court of Protection fees and deputyship fees?

When you make an application to become a deputy, there are certain court of protection costs that you will need to pay.  You will also need to pay some fees after you have been appointed.  It’s important that you understand what these are.

a. Court of protection fees on the application for deputyship

When you make an application, and you send off your application form, a deputyship application fee will apply.  To become a deputy, you must pay a £400 fee.

You need to pay the court of protection application fees twice if you’re applying to become both a property and financial affairs deputy and a personal welfare deputy (see above).

If the court decides that there needs to be a hearing then you will also need to pay a £500 fee.  The court will confirm to you if this is payable.

You’ll also need to pay £500 if the court decides your case needs a hearing. The court will tell you when you need to pay this.

b. Court of protection costs after you have been appointed

Once you have been pinpointed a deputy you will need to pay an annual supervision fee. The costs for this are:

b. Ongoing deputyship fees after you’ve been appointed

You must pay an annual supervision fee depending on the level of support your deputyship needs. You’ll pay:

  • £320 for general supervision
  • £35 for minimal supervision – this applies to some property and affairs deputies managing less than £21,000

Your annual supervision fee is due on 31 March for the previous year.

You’ll also need to pay a £100 assessment fee if you’re a new deputy.

It’s worth noting that in some circumstances, you may be able to claim a refund of your fees. 

Solicitors fees for court of protection support?

The Solicitors Regulation Authority (SRA) sets out the maximum amount a solicitor can charge for Court of Protection work in the UK.

Solicitors fees for deputyship applications are updated yearly, and solicitors must be transparent about their fees with clients.

Generally, solicitors will charge an hourly rate depending on experience, level of expertise and other relevant factors.

The fee for a simple application to the Court of Protection may range from £500 – £2,000 plus VAT.

More complicated matters or multiple applications can incur higher costs. Additional expenses such as travelling costs may also be charged.

How much does deputyship cost?

So how much are court of protection deputyship fees?

In summary, the cost of deputyship applications typically includes various expenses related to the court of protection application. There are both deputyship fixed costs and other variable costs involved.  

Hiring a court of protection solicitor is advisable to navigate the legal intricacies and ensure a smooth process. Additionally, there are court of protection order fees to consider, which can vary depending on the specific circumstances and the jurisdiction. 

It is essential to consult with a legal professional to obtain accurate information regarding the costs associated with applying for deputyship through the court of protection.

Where can I find court of protection costs guidance?

To find guidance on court of protection costs or deputyship costs, you can visit the official website of the Court of Protection in your jurisdiction. In the United Kingdom, for example, you can visit the gov.uk website and search for “Court of Protection costs guidance.”

This will provide you with detailed information on the fees and costs associated with court of protection applications and proceedings.

Alternatively, you can consult with a court of protection solicitor who specializes in this area to obtain specific and up-to-date guidance on the costs of applying for deputyship.

Typical applications to the COP include applying to be a patient’s “deputy”. The end result is similar to that of being an attorney under a lasting power of attorney where in most circumstances a deputy has general control over property and financial affairs.""

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6. How to make an application to be a deputy?

Typical applications to the COP include applying to be a patient’s “deputy”. The end result is similar to that of being an attorney under a lasting power of attorney where in most circumstances a deputy has general control over property and financial affairs.

However, the deputy must demonstrate to the COP they are fit for the role and will have various levels of court supervision during their tenure.

A court of protection deputyship application can also be made for “one-off” decisions such as making gifts or signing a “statutory Will” (signing a Will for someone who lacks mental capacity) on behalf of the patient.

These can be complex applications requiring a detailed assessment of the patient’s affairs.

All parties that may be affected by the court of protection order in favour of the application will be invited to have their say.

The COP is increasingly being asked to decide on health and welfare matters. It is rare for the COP to grant a general health and welfare power to a deputy but they do consider one-off decisions perhaps if there is a disagreement as to a care provider. The COP can step in to make a decision where there is a deadlock.

If you find yourself in the position of having to consider a COP application then seek professional advice.

So, how long does it take to get a deputyship order? The complexity of the case, the volume of cases before the court, and the existence of any objections or conflicts can all affect how long it takes to obtain a deputyship order. 

A deputyship order can be obtained anywhere between 6 and 16 weeks after the application has been submitted. If there are issues or if a hearing is necessary, it can take longer. It’s always a good idea to get legal counsel and get started on your application as soon as you can.

7. What are the responsibilities of a deputy?

If you are appointed as a deputy it is your responsibility to help someone make decisions or make decisions on their behalf.

When doing so, you must consider someone’s level of mental capacity every time you make a decision for them.  This is because you can’t assume that their mental capacity always stays the same, as things can change.

When you get a Court of Protection order it will say what you can and can’t do. You can also find general rules in the Mental Capacity Act 2005 Code of Practice.

8. Can I make welfare decisions?

You can only make welfare decisions if you have applied and been awarded the personal welfare order. Then and only then can you make decisions for your loved one and decisions that you can make will be stipulated in the order by the court.

9. Will I have to report to the Court with decisions that I make?

As a property and affairs deputy, you will be expected to complete an annual account on a yearly basis and this will document what decisions you have made on behalf of your loved one during the past year.

It is very important that you document all that you do for your loved one, keep good clear records of everything that you have paid out and keep all receipts and statements.

10. What happens if I can no longer act as deputy?

If the appointed deputy can no longer act for the person who has lost the capacity for whatever reason, another application would need to be made to the court for a new deputy to be appointed.

11. What happens if the person the order is about regains capacity?

If this happens, then an application would need to be made to the court for dispensing of the current deputyship order; medical evidence would also need to be submitted confirming the regaining of capacity.

12. Can I be paid for acting as deputy?

No. Only a professional deputy can be paid for dealing with financial affairs under a deputyship order.   A lay deputy (a non-professional) person can claim reasonable expenses.

court of protection deputy fees

13. When does a deputyship order end?

The order ends on either the death of the person who has lost capacity or if they regain capacity and are now able to deal with their own affairs.

14. Can a deputy change a will?

Generally speaking, a deputy chosen under a financial deputyship has no power to alter a will. When supporting someone under court protection, a deputy’s main duty is to handle the financial and welfare matters of a person who lacks mental ability.

The individual themselves must make any modifications to a will, so long as they have the mental capacity to do so. This is known as testamentary freedom.

Court of Protection deputies are bound by the legal framework that governs their role and must act in the best interests of the individual they are assisting. Respecting the person’s wishes as stated in their will falls under this category.

It is advised for the deputy to obtain legal counsel and confer with the Court of Protection to identify the best course of action if there are questions or disagreements about the legality or suitability of a will.

15. Is it possible to apply for joint deputyship?

Yes, it is possible to apply for a joint deputyship. When becoming a deputy, individuals can apply to the Court of Protection for joint deputyship, allowing multiple individuals to share the responsibilities and decision-making authority in managing the affairs of someone lacking mental capacity.

The court of protection procedure for joint deputyship involves submitting a joint application and providing relevant information and documentation as required.

It is important to note that joint deputyship may incur additional deputy costs, such as court fees and legal expenses, which can be shared among the joint deputies.

We would suggest that you seek legal advice and guidance throughout the application process to ensure compliance with the court’s requirements and to understand the implications and responsibilities involved in joint deputyship.

What factors determine a person’s lack of capacity?

According to our experience, several factors may contribute to a person’s inability to make decisions. These factors may include medical conditions like dementia, stroke, and other degenerative diseases.

In addition, traumatic injuries that affect the brain or cognitive function can render a person incapable. 

Age-related cognitive decline may also result in an inability to make well-informed choices. As mental capacity can fluctuate over time and is not constant, it is essential to evaluate each situation individually.

When determining whether or not a person lacks capacity, the Court of Protection considers whether or not the individual can comprehend, retain, and use information pertinent to a specific decision, weigh the information, and communicate their decision. 

This evaluation considers several factors, including the individual’s medical history, cognitive abilities, and the difficulty of their decision. If a person is determined to lack capacity, the Court of Protection may appoint a deputy to make financial and welfare-related decisions.

How does the public guardian oversee deputies?

The public guardian plays a crucial role in overseeing the deputies appointed by the Court of Protection to represent individuals who have lost mental capacity. The public guardian’s office ensures that deputies fulfil their responsibilities and act in the best interests of the person they represent. 

This includes providing direction, support, and, if necessary, intervention.

Deputies must submit annual reports detailing the decisions they made on the individual’s behalf, including financial transactions and welfare issues. The public guardian reviews these reports to ensure that deputies comply with the Mental Capacity Act of 2005 and act in the individual’s best interests. 

Suppose there are concerns about a deputy’s actions. In that case, the public guardian has the authority to investigate and, in some cases, to recommend to the Court of Protection that the deputy be removed or replaced. 

This supervision process safeguards the rights and well-being of individuals lacking capacity, ensuring they receive appropriate care and assistance.

How can someone challenge a deputy’s decisions?

In the majority of instances, challenging a deputy’s decisions requires bringing concerns to the attention of the Office of the Public Guardian. Suppose there is reason to believe that a constable is abusing their powers, not acting in the best interests of the person they represent, or exceeding their authority.

In that case, the issue must be reported. The public guardian will conduct an investigation and may take appropriate action, including recommending the deputy’s removal to the High Court.

In addition to reviewing a deputy’s decisions, the Court of Protection has the authority to overturn those decisions if necessary.

In certain instances, interested parties may directly petition the High Court to review a particular decision, particularly if they believe the deputy’s actions could have long-lasting or severe consequences for the person lacking capacity.

What is the role of the Court of Protection in creating statutory wills?

The Court of Protection has the authority to create statutory wills for those without the mental capacity to create or revise a will. This procedure involves evaluating the individual’s best interests and ensuring that the proposed will reflects them. 

These cases are overseen by High Court judges who specialise in mental capacity issues and have the same authority as a person with the mental capacity to create or amend a will.

When drafting statutory wills, the Court of Protection considers various factors, including the individual’s previous wishes, their relationships with beneficiaries, and any existing provisions in their current will. The Court aims to draught a will that reflects the individual’s wishes if they could make their own choices. This procedure ensures that the deceased’s estate is administered and distributed by their presumed wishes and best interests.

What are the limitations of a deputy order?

The Court of Protection issues a deputy order that specifies the deputy’s authority and responsibilities. Depending on the needs of the individual, the scope of the order may be limited to specific welfare-related or financial issues. 

Deputies do not have unrestricted authority; they cannot make decisions outside their orders’ scope. For instance, if they were only appointed to manage financial decisions, they could not make health-related choices.

A constable may be granted authority for a single decision or a limited time frame in certain instances. 

The Court of Protection ensures that deputies are only granted the authority required to act in the best interest of the incapacitated individual.

If it is determined that a constable has exceeded their authority or failed to act appropriately, the Court can intervene and, in some instances, legally remove the constable from office.

How do deputies manage a person’s own money?

Appointed financial decision-makers must manage the individual’s funds responsibly and in their best interests. They must keep the client’s funds separate from their own and keep accurate records of all transactions.

Deputies are responsible for making decisions regarding financial matters such as bill payment, investment management, and property transactions.

According to our research, the Court of Protection frequently appoints deputies in the north-east of England, where individuals may lack a durable power of attorney (LPA). Deputies must adhere to the instructions provided by the Court and the Office of the Public Guardian.

They are subject to regular oversight to ensure they act in the best interests of the individual they represent. If a constable is found to have mismanaged the person’s funds, the Court may remove them and appoint a new constable to serve the person’s needs better.

How do high court judges handle cases related to people lacking capacity?

Judges of the highest court play a crucial role in cases involving individuals lacking capacity. According to our experience, these judges can make specific decisions for those who have lost mental capacity, protecting their best interests. For instance, high court judges can appoint deputies to manage the finances and welfare of individuals who cannot make their own decisions.

What is the role of the public guardian in cases of lost mental capacity?

The public guardian supervises and assists deputy attorneys and attorneys appointed under a durable power of attorney (LPA) to ensure they act in the best interests of individuals with diminished mental capacity.

According to our research, the public defender can also investigate any concerns or complaints regarding the conduct of deputies and attorneys.

In most cases, the public guardian works closely with the Court of Protection to ensure that the protection’s powers are exercised appropriately and deputies carry out their duties.

How do existing wills and making statutory wills affect individuals who lack capacity?

When a person lacks mental capacity and already has a will, creating a statutory will on their behalf may be necessary.

In our experience, the Court of Protection has the authority to make decisions regarding the creation of statutory wills for those who are incapable of doing so for themselves. When creating a statutory will, the court will consider the person’s previous wishes, their financial situation, and the needs of their dependents. This ensures that their estate is distributed by their best interests and safeguards the rights of all parties involved.

What are the limitations of deputies and attorneys in cases of lack capacity?

Deputies and solicitors appointed under a durable power of attorney LPA must act in the best interests of incapacitated individuals.

However, their abilities have certain restrictions. Deputies and attorneys, for instance, cannot make decisions not expressly authorised by the court order or LPA. In addition, when making decisions, they must always consider the views and desires of the individual they represent and consult with relevant professionals, family members, and other parties.

The Court of Protection has the authority to remove deputies or attorneys if they are found to be acting inappropriately or not carrying out their duties.

Meet the author

Jane Parkinson

Jane Parkinson

Jane is one of our primary content writers and specialises in elder care. She has a degree in English language and literature from Manchester University and has been writing and reviewing products for a number of years.

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Frequently Asked Questions

What is the purpose of the Court of Protection?

The Court of Protection is a specialised court in the United Kingdom that handles cases involving people who lack the mental capacity to make their own decisions. Its primary responsibility is to safeguard the rights and interests of these individuals by making decisions on their behalf concerning their finances, health, and welfare. In cases of abuse or neglect, the court also has the authority to appoint deputies to manage the affairs of those lacking capacity.

How does the Court of Protection appoint deputies?

To appoint deputies, the Court of Protection considers various factors, including the individual’s best interests and the potential deputy’s suitability. Generally, the court will appoint a family member or close friend, but if no suitable individual is available, the court may appoint a professional, such as a lawyer. Once appointed, deputies have a legal obligation to act in the incapacitated person’s best interests, and the Office of the Public Guardian oversees their actions.

Can the Court of Protection overrule a lasting power of attorney (LPA)?

In certain instances, the Court of Protection has the authority to overturn or revoke a durable power of attorney (DPOA). The court can intervene, for example, if there is evidence of abuse, neglect, or mismanagement by the attorney or if the person who created the LPA lacked capacity at the time it was created. In such circumstances, the court may appoint a deputy to manage the individual’s affairs and make decisions on their behalf.

How can I apply to the Court of Protection for someone lacking capacity?

To apply to the Court of Protection, you must submit the proper application forms and supporting documentation, such as medical proof of the person’s incapacity. The application procedure may vary based on the type of decision or position for which you are applying. Before applying, it is essential to seek legal counsel, as the procedure can be complicated and there may be fees. Once submitted, the court will review the application and decide based on the individual’s best interests.

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