
Martin Terrell
Partner, Warners Law
PDF Director
Court of Protection practitioners are by now used to working with a slow legal process, which is as much a fact of life as potholes, heavy traffic and delayed trains. It should not be like this and we know that judges and court staff work hard to clear the backlog, which by its nature, can never be cleared. Each month the Court receives another thousand applications for a financial deputy. Each one involves a unique set of personal circumstances where a person’s autonomous rights are handed over to another. And yet time is not on their side when a straightforward application to appoint a deputy takes around six months to complete. A person who needs a deputy is someone who clearly cannot manage and needs assistance. Often that person is elderly and in the last stages of life. Care needs to be provided and paid for, bills need to be paid, a property need to be protected or repaired. It can be an anxious and unsettling time for anyone involved.
Even where the need for deputy has been identified, there is going to be a great deal of work to do even before the application is made. Practice Direction 9H requires the applicant to notify the person who lacks capacity and other notifiable persons before the application is made. Medical evidence needs to be obtained and other information needs to be collated. Often that information is out of date or partial. The Court statistics measure time from the date of the application to the date a final order is issued, the applicant’s clock will start earlier. It also carries on for longer, or starts again, as even when the order is issued, there are new delays to contend with dealing with banks, and financial and other institutions. The reality is that practitioners need to adapt and do the best they can in challenging circumstances. While we can press for improvements where we can, and there will be times when some things do improve, we also need to use our own skills and expertise to best effect. I have collated ten practical suggestions, some of which may work for some cases. They may also prompt feedback, which also introduces a new overarching suggestion. We are all experiencing the same issues and for our mutual benefit and the benefit of the clients we look after, have an interest in offering refinements where we can.
I have collated ten practical suggestions, some of which may work for some cases. They may also prompt feedback, which also introduces a new overarching suggestion. We are all experiencing the same issues and for our mutual benefit and the benefit of the clients we look after, have an interest in offering refinements where we can.
Read my top ten tips below.
Before an application is made, it is important to let the client or other parties you are dealing with know that it is likely to be a long process. If clients, relatives, creditors, and care providers know that the process is a slow one, they will not blame the solicitor when there is no deputy in place after a month or two.
It is good practice to provide the Court with as much information as possible. We should always bear in mind that the Court knows nothing of the case, it relies on us to know whether the estate is a large or small one, what the properties are worth and who owns them. We need to provide evidence of the lack of capacity and the persons to be notified. The better the information provided up front, the more likely the Court will not delay the process expecting more information or providing an incomplete order.
The Court’s timeframe for appointing a deputy only begins when it receives an application, so the sooner the application is made, the less time is lost. A great deal of time can be spent trying to prepare a perfect application, when information may be limited. It may not be possible to obtain up to date evidence of assets and liabilities; it may not be possible to trace close relatives or to establish whether a stay in a care home is temporary or permanent. There is a dilemma here between waiting for perfect evidence to start the process. Given the length of the process, it is better – even at the risk of creating more effort and delay in future – to make the application sooner rather than later, and explain to the Court what more evidence will be needed later on. An application can always be made on a COP9 to amend an order (within 21 days of issue) if the order is incomplete because more evidence has come to light during the application process.
A further consideration is that once the application has been made, the applicant is less exposed to risk. There is a remedy for costs if there is an objection or P dies before the deputy is appointed. Creditors may also be reassured knowing that an application has been made.
It goes without saying that any delays that take place should not be attributable to the us. It cannot help the efficiency of the Court if applications are incomplete and need to be returned. With the best efforts in the best firms, mistakes are easy to make. Examples (unattributed to anyone in particular, of course) include:
- Omitting one or more of the application forms
- Failing to sign and date forms
- Form COP3 failing to specify a medical diagnosis or addressing the capacity tests of the Mental Capacity Act
- Failing to name three persons who need to be notified of the application or failing to explain why certain persons have not been notified
- Leaving too long a gap between notices (see PD9H para 13)
Fewer and fewer cases seem to be straightforward, where all that is required is ‘only’ the appointment of a deputy. Specific authority may be needed, to deal with particular issues of the case, which need to be explained in the application. For example:
- To sell a property – if it is clear that the property is no longer needed, then is there a DOLS authorisation which will provide evidence of this? is the property specified in a Will? If it is not a main residence, are there Capital Gains Tax considerations?
- To administer an interest in an estate
- To obtain possession of a Will or other personal possessions from a third party
- To instruct the deputy’s firm where the deputy is a solicitor to carry out a particular item of work.
If you are asking for specific authority it is important to be clear about what is needed and explain, with evidence why it is needed.
While it is important to anticipate the extent of the authority required, there is no point asking for authority that is not needed at this time. It is tempting to provide the Court with as much information as possible about a case, to anticipate every eventuality, but this can also lead to further delay. There is no point asking for authority to sell a property if P is still living in the property. Be clear and specify whether a further order will be needed in the foreseeable future, in which case the order appointing the deputy may provide authority to restore the application (by way of COP9 and with no new fee payable). If this cannot be anticipated, then a final order can be made and a new application made in the future (with a COP1 and an application fee).
Not every application can wait several months for a deputy to be appointed. The applicant may have incomplete evidence or urgent action needs to be taken before a deputy can be appointed. Without express authority, an applicant may not be able to gain access to property or inspect and retain personal papers or place personal effects in storage. A great deal can be done with a short interim order which the Court may make – if provided with sufficient evidence – in a matter of weeks. This might include authority to:
- Investigate and report, so that banks and financial institutions are required to disclose financial information (a third party given such an order is then placed on notice of the lack of capacity and will stop sending correspondence and financial demands without further authority)
- Gain access to inspect and secure the property and contents
- Obtain release of funds from a bank account to cover care costs or property expenses (the court will generally allow funds to be released to the applicant’s firm to cover care costs or essential property expenses)
- Redirect post (for security and to obtain evidence of a person’s financial affairs)
- Require a local authority or hospital to disclose a DOLS authorisation
- Require another firm to disclose the contents of P’s Will
There is a very helpful precedent (B1) for clauses to use in an interim order provided in LexisNexis’ Court of Protection Practice.
Sometimes it is not possible to wait for an order when urgent steps need to be taken. Limited but necessary steps can be taken, to protect a person’s estate. While it is preferable to have court authority before acting, an applicant would not be criticized if taking reasonable steps to change locks, turn off a water supply, remove waste from a kitchen, or board up a property at risk. Costs incurred can be approved by the Court if and expenses incurred would be protected by section 7 Mental Capacity Act 2005 which provides a right to reimbursement where ‘necessary goods or services are supplied to a person who lacks capacity.’ Any such actions should only be carried out where there is evidence of lack of capacity, and best interests are carefully considered. For instance, can P be consulted on the matter? Are there any relatives or close friends involved? In any event, steps taken should be as limited as possible, pending express court authority.
A local authority may be prepared to assist with a financial contribution for care once an application has been made. The fact that the application has been made provides some reassurance that P’s affairs are being dealt with and there will be a means of managing any debts incurred.
The Department for Work and Pensions will designate a person as appointee to deal with the benefits of someone who cannot manage their own affairs ‘because they’re mentally incapable or severely disabled.’ An application for an appointment to act can be made without there being a deputy in place, and can be quite straightforward as well as efficient, if supported by suitable medical evidence (in practice, a copy of form COP3 will be accepted). Once the appointment has been made, the appointee can administer a state pension and any benefits, including attendance allowance, which can be used to meet personal expense and care costs.
The court process is a slow one, but will assist – or can assist – in an emergency. It goes without saying that we need to be selective when pressing for a matter to be expedited. More work is needed to push one application to the front of a queue, which will in turn delay other applications. Experience does suggest that where an application is presented carefully, with attention to the urgent steps that need to be taken, and consideration of the risk to P’s estate if the steps are not taken compared to any prejudice that may result if they are taken, the court will try to assist.
There will though be cases that are lost in the process, that disappear into a black hole. Emails to chase (the headings should be as succinct as possible and quote the court reference) are the first step. Telephone calls require a great deal of patience. As a last resort, the red button behind the glass panel, a polite email to the court manager has proved effective.
Read similar articles in The PDF Journal – ‘Deputyship Matters’