Improving your financial deputyship application to the Court of Protection

According to the Family Court Statistics Bulletin, between January 2020 and March 2020 there were 3,885 applications for the appointment of a property and affairs deputy, to manage the finances of a person (the person) who lacks mental capacity to manage their own affairs.

In comparison, and what may seem surprising, there were 4,978 orders made by an existing deputy or registered attorney.

It’s increasingly common for applications to not go smoothly. In some cases the application is stayed because of a deficiency in the application or process, or the order obtained is not quite what the applicant wanted, leading to multiple orders for the same matter. The more this happens, the greater the court workload and the longer it takes to get the final order.

Basic errors

Some of the most common mistakes are easy to prevent by having a system in place to check the application before it’s sent to the court.

Double check that all the forms are signed and dated, as it’s a common reason for applications to be returned.

Send the application to the correct DX or postal address, namely:

  • DX 160013 Kingsway 7, or
  • PO Box 70185, First Avenue House, London WC1A 9JA

Paying the court fee by ‘Payment By Account’ (PBA) is preferable. The service is available if your practice makes at least 12 court applications to any court in a year.

If your practice is not on the PBA scheme, ensure you include a cheque made out to ‘HM Courts and Tribunals Service’ for £365. Paying the wrong sum or wrong payee results in the application being returned.

If applying for a remission of the court fee, ensure that you include all the forms and up-to-date evidence that are needed in support of the claim. Use the checklist on the front page of form COP1 to ensure that the correct forms are submitted with the application.

You should keep copies of all forms that have been completed and filed with the court.

The applicant’s poor financial history

The applicant deputy must sign COP 4 (deputy’s declaration) which sets out a series of confirmations and undertakings, including that the deputy has never been:

  • bankrupt
  • subject to an individual voluntary arrangement under Part VIII of the Insolvency Act 1986
  • subject to a debt relief order

The court order includes a requirement for the deputy to take out a security bond, but unfortunately the bond providers generally refuse cover for anyone who has ever been bankrupt. It’s irrelevant whether the applicant deputy has been discharged from bankruptcy.

Improving the application

Rule 9.10 of the Court of Protection Rules 2017 requires the applicant to name people to be notified of the application. This is different to serving respondents, which is generally not needed in a deputyship application.

Practice Direction 9B sets out the detail of people to be notified, but in general terms it’s at least three of the person’s close relatives and/or friends. The policy reason behind this rule is that most cases are undisputed, and it allows others to bring any concerns to the court’s attention, so is an important safeguard to the person.

Notification is easily satisfied by completing form COP15 and COP5 (acknowledgment of notification) and sending it to those people by first class post.

Failure to notify three people is another common reason for applications to be delayed. The person may not always have any immediately identifiable family or friends. However, the court expects reasonable efforts to be made to locate and notify these people.

Failure to notify anyone will mean the application is stayed, until either the applicant:

  • notifies others, such as the person’s doctor, advocate, care home manager, social worker or neighbours
  • makes an application on form COP9 with a supporting witness statement (form COP24) asking the court to dispense with notification, as it’s not in the person’s best interests

To comply with the least restrictive principle set out in s.1(6) of the Mental Capacity Act (MCA), the court must consider whether to limit the scope of the deputyship order (s.16(4) MCA).

If the deputy is seeking an order to sell the person’s home, the application should confirm whether the person is subject to a standard authorisation for their deprivation of liberty, or if one is being applied for, and whether they’re challenging the deprivation.

This information may be obtained from the care home or hospital in which the person lives or from the person appointed to represent them (known as ‘the relevant person’s representative’). This avoids the risk that the deputy sells the person’s home, when the person is challenging their deprivation of liberty, and they want to return to their own home to live. If there’s no objection or challenge, it’s helpful for the court to know whether a best interest decision has been made that the person will not be able to return to their home to live.

If applying for urgent interim directions using section 1.3 of form COP1, the applicant should be specific about what directions are needed from the court. For example, if an interim release of funds to meet care fees are needed, the applicant should state:

  • why the matter is urgent and cannot await the appointment of a deputy
  • how much is required
  • from what source the fees should come

The applicant should submit copies of any outstanding invoices or accounts in support of the application.

Although the court uses template orders, they are adapted for the person’s circumstances. If the applicant is not specific about the authority they require, they run the risk of not getting the order they need. Include specific details of the order sought in section 4.1 of form COP1.

Form COP1A contains details of the person’s financial information. The court uses this information to:

  • decide whether a deputyship order is needed
  • decide what specific authority is needed by the deputy
  • set the level of the security bond

What may be obvious to the applicant is not necessarily obvious to the court, so ensure the application is clear.

If there’s a registered lasting or enduring power of attorney

If there’s a registered lasting or enduring power of attorney (LPA or EPA) in existence, explain why the attorneys cannot act.

If an attorney is unwilling to act, they should disclaim their appointment by completing form LPA005 or EP5 and submit these with the original power to the Office of the Public Guardian. Copies of the disclaimer should be sent with the deputyship application.

If there’s another reason why the attorney cannot act, for example they’ve become bankrupt or they’ve lost mental capacity, this should be explained in section 2.3 or in a witness statement (form COP24). In addition, a copy of the LPA or EPA should be provided for the court.

The person’s will

The person’s will provides information about who they want as their executors and beneficiaries. It’s generally expected that those people would be notified of the application, and one of them would be the applicant.

If they’re not, then the applicant should explain why this is the case, in the application, or in a witness statement (form COP24).

If the person is a beneficiary to an estate

If the person is a beneficiary to an estate, the court will want to know the approximate value of the person’s interest.

If the person is a residuary beneficiary, then the court will want to know the approximate valuation of the whole estate.

If authority is needed to obtain a grant of representation to an estate, the court needs the deceased’s full name.

If the person is entitled to an award of damages or compensation

If the person is entitled to an award of damages or compensation, sections 4.5 to 4.7 of COP1A should be completed.

It may be easier to supply this information in a separate witness statement (form COP24). In particular, the court needs:

  • an estimate of the value of the claim
  • details of any interim awards made or pending
  • a copy of any final order
  • details of projected annual income and outgoings on care
  • proposed major capital expenditure
  • plans for investment

Savings accounts

Savings accounts should confirm the most recent known balance, and the approximate value for any investments held.

Exercising a trustee power

A deputy is not allowed to exercise a trustee power (s.20(3)(c) MCA).

If property is owned by the person in joint names with another, this is a trust, and so a separate application to appoint a new trustee or trustees will be required.

Guidance note GN2 on jointly owned property and Practice Direction 9F should be consulted.

Section 6 (other information)

Section 6 (other information) of the form should be completed.

It can be useful to set out:

  • what was the person’s situation before the onset of incapacity (if they previously had capacity)
  • the event which triggered the need for the application
  • the foreseeable plans for their care
  • any wishes, feelings, beliefs, values and other factors which the person has concerning the application
  • any additional information which might be relevant, or of assistance to the court in deciding how to structure the order and what powers to include within it

Filing notice of service

Failure to personally notify the person is a common cause of rejection of applications. Part 7 of the Court Rules and Practice Direction 7A should be consulted as to the details.

The person should be personally given a completed form COP14 and COP5 (acknowledgment of notification) by the applicant or their agent.

To avoid delays, ensure that the person who undertook the service has completed sections 3.2 and 3.8 and has signed and dated form COP20A.

Form COP20B should also be completed, signed and dated in respect of the people who have been notified of the application.

It’s now possible to file these with the court, by scanning both documents into a PDF file and attaching it to an email to COPService@justice.gov.uk. This speeds up the process, as it’s easier to match the notification with the court file. In the email heading, include the case name and case number.

Provided the application is complete and the notifications have been confirmed, the court will process the application and make an order. It’s in everyone’s interest to get the application right first time.