Court of Protection Solicitors

The two main types of application are for a deputy for someone’s property and financial affairs or for their personal welfare.

The order made by the court will set out what the deputy can do but, in general terms, a deputy for financial affairs can do most of the things that you can do, for instance, pay bills, collect your pension, make small gifts and take over bank accounts.

A deputy for personal welfare is allowed to make decisions in relation to your care and health needs. However, it is rare for the court to agree to appoint a personal welfare deputy. If no one is appointed to deal with your personal welfare the local authority has a duty to ensure your needs are met and will make decisions for you.

Statutory wills – If you have lost capacity before having made a will, somebody can apply to make a will on your behalf. This is known as a statutory will and whilst a sample will be submitted to the court, it is ultimately their decision as to what the content of the final will, will be.

Gifts – Whilst attorneys under a Lasting Power of Attorney for Property and Financial Affairs or Enduring Power of Attorney have limited powers to make gifts from your money, any gift must be a reasonable amount in relation to the size of your estate. If your attorney wishes to make a large gift, for example for inheritance tax planning purposes, then they must make an application to the court. After looking at your assets, income and expenditure the court will then make a decision as to whether that level of gift can be made.

Sale of property – if you have made a Enduring or Lasting Power of Attorney then, provided you have not restricted your attorney, they will be able to sell your property. This may be necessary if you need to move into residential care. However, deputies must apply to the court for permission to sell a property.

This varies depending on the type of estate. Grant of Letters of Administration can usually be obtained within six months of death – sooner if the estate is small or very straightforward. Most administrations can be completed within 12-18 months.

The legal fees for making a deputyship application are greater than those for making a Lasting Power of Attorney. There are also court fees and fees charged by a doctor or medical expert to provide a medical report.

The process of applying to the court to appoint a deputy can be in the region of 6 to 8 months. If an urgent order is required a fast-track application can in some circumstances be made to the court.

Whilst in a deputy application the applicant could be a family member, friend or professional advisor, it could also be someone who you would prefer not to handle your affairs or there could be a family disagreement as to who should apply.

You will need to write to all of the institutions where the deceased had holdings or owed money and they will provide you with the information. You will need to arrange valuations of the deceased’s property, and also their personal possessions.

YES! The Inland Revenue needs details of all gifts made by the deceased within the last seven years of their life, particularly if they exceed £3,000 per tax year. They may need details of earlier gifts if the deceased paid any money into a trust during their lifetime. Even though a gift has been made, the value may still have to be treated as part of the deceased person’s estate. It is your responsibility as personal representative to ensure you have properly investigated any gifts made, and to whom, as the Revenue may make further investigations of their own.

rom the beneficiaries – if they still have them!

You will have to complete a form which gives details of the deceased’s estate. You are signing this form to say that all the information you have given is true to the best of your knowledge, and that you have made proper enquiries to establish the information. If you deliberately withhold information, or give incorrect information because you have not made proper enquires, then you may be subject to penalties or prosecution personally.

Although you will not have to pay the tax from your own pocket, as personal representative you are responsible for ensuring this is paid from the estate. The first payment is due six months after death occurs, and you will need to ensure sufficient funds are available. The Inland Revenue charges interest on any sums which remain unpaid.

Most people will make you aware if they are owed money from an estate. Funeral and testamentary expenses (such as inheritance tax) take priority, with secured debts (i.e. a mortgage) and unsecured debts (i.e. credit cards) following.

If you distribute the estate without paying off all the creditors, as personal representative you will be personally responsible for paying any outstanding sums, and then claiming monies back from the beneficiaries – tricky if they have already spent their inheritance. There is no timescale – if a creditor were to surface 3 years or 30 years in the future, you would still retain initial liability.

However, you can pass this responsibility to the beneficiaries by placing a simple advertisement in the London Gazette, and the deceased’s local paper. Once the advertisement has expired (usually two months from when it is placed) you as personal representative you have no more responsibility.

Usually you will know very quickly if someone intends to contest a will. There are several claims which can be made, some of which must be made within 10 months of the Grant of Representation being obtained. It is advisable to check the position carefully before you distribute the estate. If a distribution is made, and a claim is subsequently made, you may be responsible for meeting the costs of that claim initially and then claiming monies back.