Court of Protection
This page gives an overview of the role of a Deputy appointed by the Court of Protection (COP). It includes information on the role, authority, duties, supervision, reporting and costs. It also sets out how professional deputies can charge fees.
The COP has jurisdiction to appoint a person to make decisions on behalf of another person who lacks capacity (section 16(2)(b) Mental Capacity Act 2005 (MCA 2005)). The person who lacks capacity is often referred to as P. The appointed person is called a deputy.
Under the Mental Health Act 1983 persons appointed by the COP to act on behalf of P were known as receivers. Receivers automatically became deputies when MCA 2005 came into force on 1 October 2007.
A deputy can be appointed to deal with either, or both, of the following:
- P's property and financial affairs.
- P's personal welfare (although this type of deputyship is more unusual).
It is unnecessary to appoint a deputy where the incapacitated person's only income is benefits and they do not have property or savings. In these circumstances, the Department of Work and Pensions appoints an appointee to manage the benefits of a person who is unable to deal with this themselves.
The role of the deputy is specified in the order of the COP appointing him. A deputy can be appointed to deal with a single decision or to deal with decisions on an indefinite basis. Depending on the circumstances and needs of P, acting as a deputy can be a time consuming responsibility.
The COP will only appoint a deputy if:
- P has not made an Enduring or Lasting Power of Attorney that covers the decisions to be made.
- It believes that the appointment of a deputy is preferable to the COP making a decision (section 16(4)(a), MCA 2005).
The rules of principal and agency apply to the relationship between a deputy for property and financial affairs and P, except that the deputy has a duty to account to the court instead of P.
Who can act as deputy?
A deputy for property and financial affairs must be:
- An individual who has reached the age of 18.
- A Trust Corporation
A deputy for personal welfare must be an individual who has reached the age of 18 (section 19(1)MCA 2005).
All deputies must consent to their appointment (section 19(3), MCA 2005).
Appointment of deputy
The final decision regarding who to appoint as a deputy rests with the COP. This means that the COP may decide to appoint someone other than the proposed deputy.
Although relatively rare, the COP can appoint two people to act as deputies in relation to the same matters. They can be appointed to act:
- Jointly and severally.
- Jointly for some matters and jointly and severally for others.
(section 19(4), MCA 2005.)
It is also possible for the COP to appoint different deputies to act in relation to property and affairs and personal welfare. In these circumstances, there are areas of overlap where the deputies must work together (for example, the selection of a care home involves both welfare and financial decisions).
The COP can appoint successive deputies (section 19(5), MCA 2005). For more detail, see
A personal welfare deputy can begin acting as soon as the deputyship order is issued. A property and affairs deputy can begin acting when the deputy has paid the security .
The Office of the Public Guardian (OPG) maintains a panel of those willing to act as deputies for property and affairs. Cases are referred to a panel member where there is no one suitable or willing to act as a deputy for P. The panel was renewed in April 2011
Acting as deputy
The scope of a deputy's powers depends on the terms of the COP order (the deputyship order) appointing him. The COP must:
- Confer powers on a deputy that are as limited in scope and duration as reasonably practicable in the circumstances.
- Impose any terms on a deputy’s appointment as it considers are in P’s best interests.
(section 16(4)(b) and (6), MCA 2005.)
Despite the COP's statutory obligations, if it decides that a deputy for property and affairs is required, it will usually confer general powers of management. The COP approaches the appointment of deputies for personal welfare with more caution and orders often contain narrower powers. Ultimately, the COP must decide whether it is in P's best interests to appoint a deputy and, if so, what powers are appropriate.
In addition to restrictions in the deputyship order, all deputies must also act within the following five statutory principles:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so are taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under the MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, the deputy must consider whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
(section1), MCA 2005.)
Section 17 (1) of the MCA 2005 lists the powers that the COP may authorise a deputy to exercise in relation to personal welfare, including deciding where P is to live and what contact (if any) P is to have with specified persons. This list is indicative, not exhaustive, and subject to restrictions.
It is not possible for the COP to give a personal welfare deputy power to:
- Prohibit a named person from having contact with P.
- Direct a person responsible for P's health care to allow a different person to take over that responsibility.
- Refuse consent for P to have life sustaining treatment.
(Section 20 MCA 2005.)
If P made a valid Advance Decision while he had capacity that covers a particular decision about treatment, P is treated as having capacity in relation to that decision. This means that the deputy cannot make that decision on P's behalf (section 20(1), MCA 2005).
Property and affairs
Section 18 (1) of the MCA 2005 lists the powers that the COP may authorise a deputy to exercise in relation to P's property and affairs. Again, this list is indicative and subject to restrictions.
It is not possible for the COP to give a property and affairs deputy power to:
- Settle any of P's property, whether for P's benefit or for the benefit of others.
- Execute a will for P.
- Exercise a power vested in P as a trustee or beneficiary or otherwise.
(Section 20 MCA 2005.)
Code of Practice, duties and deputy standards
Deputies must consider the Code of Practice for the Mental Capacity Act 2005 (Code of Practice) (section 42(4)(b), MCA 2005). The Code of Practice provides guidance for anyone who works with, or cares for, a person who lacks capacity. Section 8.52 of the Code of Practice sets out the parts of the guidance that apply to deputies.
Other duties owed by a deputy include:
- Acting with due care and skill.
- A fiduciary duty not to profit from the position.
- A duty not to delegate, unless authorised to do so.
- Acting in good faith.
- Respecting the confidentiality of P's information.
- Complying with COP directions.
- Keeping accounts (property and affairs deputies).
- Keeping P's money and property separate from his own (property and affairs deputies).
(Sections 8.56 to 8.67, Code of Practice.)
The Code of Practice provides a brief explanation of each of the duties owed by a deputy.
The OPG expects certain standards from public authority and professional deputies. These are set out in the following publications:
OPG: DEPUTY STANDARDS: Professional deputies
OPG:DEPUTY STANDARDS: Public authority deputies
Conflicts of interest
Deputies must be alert to the possibility of a conflict of interest. Conflicts arise most frequently with family deputies. In Re Buckley (2013) EWCOP 2965 the Senior Judge of the COP gave the following guidance on dealing with conflicts:
- Funds belonging to the deputy and to P must be kept separate.
- Investments should be made in P's name, where possible.
- An application must be made to the COP for any financial transaction where there is a potential conflict of interest (for example, a loan to the deputy or member of their family or an investment in the deputy's business).
A deputy for property and financial affairs has no statutory authority to make gifts. The deputyship order specifies the authority for making gifts and this is usually the same as the authority of an attorney under an LPA for property and affairs, that is:
- Gifts must be reasonable with regard to all the circumstances and the size of P's estate.
- Gifts can be made:
- to any charity that P made, or might be expected to make, gifts to; or
- on customary occasions to persons that are related or connected to P.
(Section 12 MCA 2005.)
A customary occasion is the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or any other occasion on which presents are customarily given in families, or among friends or associates (section 12(3), MCA 2005).
It is not generally permissible for a deputy to make gifts for Inheritance tax (IHT) planning purposes without COP approval. This is the position even if the deputy is trying to make lifetime gifts that reflect the beneficial provisions in P's will. However, case law has established a sensible de minimis exemption for gifts made by deputies. The exemption covers the use of the annual exemption of £3,000 a year and the use of the small gifts exemption of £250, up to a certain number of people, depending on P's circumstances.
Applications to COP by deputy
A deputy may apply to the COP for a decision on behalf of P that he cannot make himself because it is outside the scope of his authority. The deputy should seek the COP’s assistance for any decision involving a conflict of interest between the deputy and P if the decision:
- Is likely to prove controversial.
- Provides another party with a benefit
It is no longer possible for a deputy to obtain informal guidance from the OPG about whether COP approval is required for a specific decision, so a deputy must make an application if there are concerns.
(If the attorney or deputy wants, or needs, to apply to the COP, he may be able to use the short procedure in paragraphs 8 to 11 of Practice direction (PD 9D) to the Court od Protection Rules 2007 (SI 2007/1744).
While the COP is ultimately responsible for the supervision of deputies, day to day supervision is delegated to the OPG (Section 58 MCA 2005).
Following a consultation in late 2013, the OPG announced a review on the supervision of deputies that considered how to improve supervision to make oversight more effective, proportionate and case-specific. (The report to Parliament on the review was issued in December 2014). At the time of the report, the OPG had already moved to supervision according to deputy type (lay, local authority, and panel or professional) to meet the particular requirements of each category of deputy. Further planned changes include tighter control of deputyship charges.
Types of supervision
There are two different types of supervision, depending entirely on the level of support that the OPG judges appropriate, as follows:
- General supervision. This is the normal type of supervision. The deputy may receive a visit from a COP visitor .
- Minimal supervision. This is primarily for property and affairs deputies managing less than £21,000.
(Regulation 8 (3), Public Guardian (Fees, etc) Regulations 2007 (SI 2007/2051).)
The type of supervision is reviewed periodically by the OPG and can be varied by the OPG as appropriate.
A fee of £100 is payable to the OPG for assessing the required level of supervision (Schedule Public Guardian (Fees, etc) Regulations 2007).
When the COP appoints a deputy for property and financial affairs, the deputy must take out a security bond in accordance with regulation 34 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007/1253) (LPA Regulations 2007). This is an insurance product and protects P from financial loss if the deputy uses P's funds inappropriately. The security is highly effective because the amount of any loss identified by the OPG and certified by the court is paid to P in two weeks and without dispute. For an example of when a security bond was called in by the COP.
The premium for a security bond is paid from P's funds on an annual basis.
The level of security is set at whatever level the COP thinks is required for the proper discharge of the deputy's functions (section 19(9)(a), MCA 2005).
Once security is set, the OPG is responsible for holding and administering it. The deputyship order is not issued until the security is set up.
A security bond must remain in place for two years after the death of P or seven years after the death of the deputy, unless it is cancelled by court order (regulation 37(3), LPA Regulations 2007).
Reports and record keeping
The deputy must submit an annual report to the OPG using Deputy annual report form (OPG102) Deputy annual report form 9OPG102). The report must be submitted by all deputies, except those with minimal supervision, who may still be asked to file a report on occasion by the OPG. The form requires the deputy to:
- Give details of any major decisions made on P's behalf.
- Provide the contact details of the significant people that the deputy has been in contact with while managing P's affairs.
- List P's assets.
- Provide details of income and expenditure.
- Give further detail about any major property or other financial expenditure.
The OPG automatically sends the form to deputies a few weeks before the end of the accounting period.
When the deputy's appointment is terminated, the OPG may require a final report to be submitted (regulation 40, LPA Regulations 2007).
A deputy appointed to manage P's property and affairs must keep proper accounts of all dealings and transactions made on P's behalf (section 8.66 Code of practice) ( www.practicallaw.com/3-376-4490) . Some of the detail from these accounts is used to complete the annual report for the OPG. The OPG may also request that the deputy submit accounts from time to time as part of their overall supervision of deputies.
As part of their proper accounting, deputies should keep copies of bank statements, receipts and other financial correspondence.
COP visitors carry out visits to deputies Visits are often routine and simply to check that the deputy is acting properly. More rarely, visits may be triggered by a complaint or concern that has been raised with the OPG.
The deputyship order specifies how ongoing costs and fees can be recovered by the deputy from P. A deputy may recover:
- Out of pocket expenses.
- Where the deputy is a professional, either:
- fixed costs; or
- costs as determined under the detailed assessment procedure.
The deputyship order states whether fixed costs apply or whether there is to be a detailed assessment. Even where a court order provides for detailed assessment, the deputy can opt to take fixed costs instead.
As a general rule, P meets the cost of any COP proceedings relating to P's property and affairs. Where proceedings relate to P's health and welfare, the general rule is that there is no order for costs (Rules 156 and 157 Court of Protection Rules 2007). The COP may order that the costs of one party are met by another.
A professional deputy may decide to recover fixed costs for most aspects of his work, including:
- The work to apply for the deputyship order.
- The ongoing general management work of acting as a deputy.
- The preparation of the annual report for the OPG.
- The preparation of P's tax return.
- Selling or purchasing a property for P.
The amounts allowed for fixed costs are specified in COP PD 19B (PD 19B), which supplements Part 19 of the Court of Protection rules 2007. Fixed costs are payable by P.
Professional deputies often feel that fixed costs are insufficient to cover the volume of work completed for P. In these circumstances, the deputy can ask for detailed assessment, provided that it is permitted under the terms of the deputyship order.
Detailed assessment of costs
If a deputy decides to apply for a detailed assessment of costs, the general rules relating to the proper costs payable to a solicitor in legal proceedings apply
Costs are usually awarded on the standard basis. This means that allowed costs must be reasonable and proportionate. Guideline rates apply to work carried out by different levels of fee earner.
A deputy should submit application form N258 to the Senior Court Costs Office (Costs Office) together with:
- The document giving the right to detailed assessment.
- Copies of all COP orders relating to the costs to be assessed.
- A draft bill.
- A completed certificate stating that all disbursements under £500 are paid.
- Written evidence of any disbursements over £500.
- Copies of any fee notes from counsel and experts.
- Supporting documents such as the correspondence file.
- A statement signed by the deputy giving his name, address for service and reference.
- A statement giving the name and postal address of any person who has a financial interest in the outcome of the assessment (and, if this person is a protected party such as P, a statement to that effect).
- The application fee of £200 (unless the short form procedure is used).
Many solicitors use a costs draftsman to prepare the draft bill to ensure that the correct procedure is complied with.
After receiving the application, the Costs Office issues a provisional bill. The deputy has two options, as follows:
- Accept the provisional bill, complete the summaries and certification that the bill is correct before returning it to the Costs Office.
- Request an appointment for a detailed assessment hearing.
Once determined, the Costs Office issues a costs certificate. The assessed costs are payable by P.
Short form bills
Where the costs claimed (excluding VAT and disbursements) are less than £3,000, the deputy can submit a summary of time and hourly rates claimed. This avoids the preparation of a detailed draft bill and has a reduced application fee of £100.
OPG annual fees
Annual fees are payable from P's funds to the OPG, depending on the level of supervision that the deputy is given. Minimal supervision has an annual administration fee of £35. General supervision has a £320 annual fee (Schedule Public Guardian (Fees, etc) Regulations 2007). It is possible to set up a direct debit to pay for the annual fee.
If P is on means tested benefits, it is possible to apply for an exemption from fees. If P's income before tax is less than £12,000 a year, a 50% fee remission will apply.
Notifying others of appointment and changes in information
A court sealed copy of the deputyship order should be sent to every institution where P holds assets and that might need to be accessed by the deputy. Further copies of the deputyship order can be requested in writing from the COP. The fee is £5 a copy.
If the deputy changes his personal details, such as address or phone number, the OPG should be notified as should any third party that may need to contact the deputy in connection with his role.
Termination of appointment
If P dies, evidence such as a death certificate should be sent to the OPG to notify them that the deputy's role has ended. Equally, the OPG must also be notified of the death of a deputy.
If P recovers mental capacity and therefore no longer requires a deputy to act on their behalf, the deputy must file form COP9 and supporting evidence, such as a letter from P's doctor, with the COP.
If the deputy decides that he does not wish to continue acting as a deputy, he must make an application to the COP using form COP1 for a court order to discharge his appointment
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