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Court of Protection

This publication guides practitioners working on Court of Protection matters and advising on capacity issues and the deprivation of liberty.

1 Matter Plan

Overview

The commentary covers the process of making an application to the Court of Protection, capacity issues, and deprivation of liberty orders. It also provides guidance on the role of a deputy and on applying for, managing, and terminating a deputyship.

The Reference materials folder includes guidance on electronic signing and witnessing, and the comprehensive Getting the matter underway folder includes compliance and client care documents. Using the extensive Retainer Instructions when gathering information ensures nothing is missed.

Precedents in this publication include:

  • letters to:
    • the vulnerable person;
    • family members;
    • notifiable people;
    • potential respondents;
    • medical contacts;
  • application forms;
  • deputy report forms.
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1 Matter Plan Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Court of Protection
  • Folder icon Reference materials
    • Item icon Electronic Signing and Witnessing
    • Item icon Looking to the Future
  • Item icon Overview
    When individuals cannot manage their affairs and have no process in place for an attorney to manage them, the Court of Protection can be asked to make decisions for them. The Court of Protection has a number of judges and experts with the same powers as the High Court and the authority to set ...

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  • Item icon Summary of the process
    The usual steps when acting on an application to the Court of Protection are:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Court of Protection
    • Item icon To do list - Court of Protection order
    • Item icon First steps
    • Item icon Retainer instructions - Court of Protection orders
    • Folder icon Compliance documents
      • Item icon Client Due Diligence and Anti-money Laundering Guidance
      • Item icon Client Details, Identity Verification and Source of Funds
      • Item icon Conflict of interest check
      • Item icon Client and matter risk assessment
      • Folder icon If required - Reporting an issue
        • Item icon Anti-money laundering internal disclosure
    • Item icon Initial letter to client following instructions for Court of Protection order enclosing Client Care and Terms of Business
    • Folder icon Enclosures for initial letter to client
      • Item icon Client care information
      • Item icon Terms of business
      • Item icon Scope of work - Court of Protection order
      • Item icon A summary of the process of applying to the Court of Protection to be a property and financial affairs deputy
    • Item icon Time and costs estimates
    • Folder icon If required - Letter to client varying the Client Care and Terms of Business
      • Item icon Letter to client varying the Client Care and Terms of Business
    • Folder icon General deeds, agreements, statements, declarations, consents, and execution clauses
      • Item icon Deeds and agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of assignment of agreement
        • Item icon Deed of assignment of agreement with consent
        • Item icon Deed of assignment of an insurance policy
        • Item icon Deed of assignment of equitable interest in residential land
        • Item icon Deed of gift
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Deed of release and grant
        • Item icon General deed of indemnity
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality
          • Item icon Confidentiality - Extensive
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Third parties
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Boundary agreement
        • Item icon Confidentiality agreement
        • Item icon Construction agreement
        • Item icon Heads of agreement
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality
          • Item icon Confidentiality - Extensive
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Third parties
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Statements and declarations
        • Item icon Statement of truth
        • Item icon Statement of truth - High Court
        • Item icon Statutory declaration
        • Item icon Statutory declaration of solvency
        • Item icon Affidavit - General
        • Item icon Exhibit sheet for affidavits - General
        • Item icon Witness statement - Family matters
        • Item icon Exhibit sheet to witness statement - Family matters
        • Item icon Witness statement - Civil matters
        • Item icon Exhibit sheet to witness statement - Civil matters
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements and contracts
        • Item icon Execution clauses - Deeds
        • Item icon Execution clauses - Overseas companies
      • Folder icon Consents
        • Folder icon If required - Personal data consent - General
          • Item icon Letter to client enclosing consent - General
          • Item icon Letter to third party enclosing consent - General
          • Item icon General letter enclosing client consent
          • Item icon General letter enclosing third party consent
          • Item icon Consent to provide information - General
          • Item icon Consent to provide information - General - Third party
        • Folder icon If required - Personal data consent - Health professional
          • Item icon Letter to client enclosing consent - Health professional
          • Item icon Letter to third party enclosing consent - Health professional
          • Item icon Letter to doctor enclosing client consent
          • Item icon Letter to doctor enclosing third party consent
          • Item icon Consent to provide information - Health professional
          • Item icon Consent to provide information - Health professional - Third party
        • Folder icon Change of name
          • Item icon Change of name deed for an adult - Concise
          • Item icon Change of name deed for a minor - Concise
          • Folder icon If required - Enrolment by an adult
            • Item icon Change of name deed for an adult - For enrolment
            • Item icon Statutory declaration - Enrolment of adult change of name deed
            • Item icon Notice for the London Gazette on the change of name of an adult
            • Item icon Consent to enrolment of change of name of an adult
          • Folder icon If required - Enrolment by a minor
            • Item icon Change of name deed for a minor - For enrolment
            • Item icon Statutory declaration - Enrolment of minor change of name deed
            • Item icon Affidavit of best interest for the change of name of a minor
            • Item icon Consent to enrolment of change of name of a minor
  • Folder icon B. Court of Protection applications
    • Item icon A deputy
      A deputy is appointed by the Court of Protection to be legally responsible for someone who lacks the capacity to make decisions for themselves where there is no power of attorney. There are two deputyship types:

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    • Item icon Capacity
      An application for a deputyship order can only be made to deal with the affairs of a person who has lost capacity. Family members or carers will usually have anecdotal evidence suggesting that capacity has been lost. However, for the application, substantial evidence is necessary. It may be ...

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    • Item icon Letter to medical contact to assess capacity for deputyship application
    • Item icon Letter to medical contact enclosing COP3 Assessment of Capacity form
    • Item icon Assessment of capacity
    • Item icon Before applying to be a deputy of someone’s property and affairs
      Applications made after 1 January 2023 are made using an online system: Apply for a property and affairs deputyship order. Before applying, the vulnerable person and three others must be notified. They may be relatives, social workers, or doctors.

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    • Item icon Apply for a property and affairs deputyship order
    • Item icon Notification form and Acknowledgment of notification – from the person to whom the application relates
    • Item icon Notification form and Acknowledgment of notification – persons with an interest in the application
    • Item icon The application for deputyship
      The application for deputyship is made using form COP1 Application Form, which contains guidance notes for completion. Section 4 of the application sets out the orders requested, for example, the appointment of a deputy for property and affairs or personal welfare. It will also assist the ...

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    • Item icon Application form
    • Item icon Annex A - supporting information for property and financial affairs applications
    • Item icon Annex B - supporting information for personal welfare applications
    • Item icon Annex D - supporting information for applications to appoint or discharge a trustee
    • Item icon Deputy's declaration
    • Item icon Witness statement
    • Folder icon If required - Sending application for completion
      • Item icon Letter to client sending application documents for completion and return
    • Item icon Letter to court filing documents
    • Item icon Letter to client confirming deputyship application has been made
  • Folder icon C. Notifications required after application made
    • Item icon Notification of the application
      Property and financial affairs application Notification takes place before applying. See Before applying to be a deputy of someone’s property and affairs.

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    • Item icon Letter to the vulnerable person notifying them of deputyship application enclosing COP5 & COP14
    • Folder icon Enclosures for letter notifying vulnerable person
      • Item icon Proceedings about you in the Court of Protection
      • Item icon Acknowledgment of service or notification
    • Folder icon If required - Respondent notification
      • Item icon Letter to respondent serving deputyship application documents and COP5
      • Item icon Acknowledgment of service or notification
    • Item icon Letter to notifiable person notifying them of deputyship application enclosing COP15
    • Item icon Notice that an application form has been issued
    • Item icon Certificate of service (non-service) notification (non-notification)
    • Item icon Letter to client confirming deputyship order has been made encl information
    • Folder icon Enclosures for letter to client confirming deputyship order
      • Item icon How to be a deputy – Property and financial decisions
      • Item icon How to be a deputy – Personal welfare decisions
      • Item icon Guidance for people wanting to manage a bank account for someone else
      • Item icon Letter to the vulnerable person notifying them of deputyship order encl COP5 and COP14
      • Item icon Proceedings about you in the Court of Protection
    • Item icon Letter to court filing documents
    • Item icon Certificate of notification or non-notification of the person to whom the proceedings relate
    • Item icon Letter to third party enclosing copy deputyship order
  • Folder icon D. If required - Deprivation of liberty
    • Item icon Deprivation of liberty
      The Court of Protection is also responsible for deciding in circumstances where an individual’s liberty has been deprived due to a lack of mental capacity or an order is sought for the deprivation of an individual’s liberty. For the practitioner, the question may be whether a client, or a family ...

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    • Item icon Deprivation of liberty application form - for urgent consideration
    • Item icon Deprivation of liberty - declaration of exceptional urgency
    • Item icon Deprivation of liberty - certificate of service or non-service
    • Item icon Deprivation of liberty - acknowledgment of service or notification
  • Folder icon E. Managing a deputyship
    • Item icon Role of a deputy
      Powers The deputy's powers stem from the order, which will detail the actions that the deputy can and cannot take.

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    • Item icon Letter to Office of the Public Guardian advising of change of deputy address
    • Item icon Letter to medical practitioner requesting access to patient's medical records
    • Item icon Authority to forward documents and information
    • Item icon Letter to Office of the Public Guardian enclosing deputy report forms
    • Item icon Deputy report form for property and financial decisions - general supervision
    • Item icon Deputy report form for property and financial decisions - minimal or first year general supervision under £21,000
    • Item icon Deputy report form - health and welfare decisions
    • Item icon Electronic Bill - Court of Protection
    • Item icon Changing the deputyship order or making one-off decisions
      If the order is too narrow to allow for a specific decision or assistance is sought from the court in making a decision, a further application may be made to the Court of Protection using form COP1 Application Form. The nature of the decision and the change or order that is being requested should ...

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    • Item icon Letter to court filing documents
    • Item icon Application form
    • Item icon Witness statement
  • Folder icon F. Terminating a deputyship
    • Item icon Terminating a deputyship
      If the person recovers capacity, a form COP9 Application Notice should be completed and sent to the Court of Protection with evidence such as a doctor’s report. If the deputy no longer wants or needs to be a deputy, form COP1 Application Form should be submitted explaining why this is the ...

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    • Item icon Application form
    • Item icon Witness statement
    • Folder icon If required - Vulnerable person has recovered capacity
      • Item icon Application notice
    • Item icon Letter to court filing documents
    • Folder icon If required - Vulnerable person has died
      • Item icon The death of the vulnerable person
        If the person who lacks capacity dies, the Office of the Public Guardian and the Court of Protection should both be contacted and a death certificate supplied. There is no specific form for this.

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      • Item icon Letter to Office of the Public Guardian advising of death and enclosing copy of death certificate
      • Item icon Letter to Court of Protection advising of death and enclosing copy of death certificate
  • Folder icon G. Finalising the matter
    • Item icon Letter to client finalising Court of Protection matter and enclosing account
    • Item icon Example invoice
    • Item icon Invoice recital - Court of Protection
    • Item icon Enclosure - Explaining the bill
    • Item icon Closing the file
    • Item icon File closing checklist
    • Item icon File review form - General
  • Item icon Further information
  • Item icon Comments and suggestions for By Lawyers

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