It will never happen to me
If you have stumbled across this blog by accident it’s likely that you already have doubts about the mental capacity of your loved one to look after their own financial affairs. It might be that such difficulties never occurred to you before your loved one became too confused to be able to make the decision to grant you authority to help with their money. Or, as we often see, you may have been desperately trying to persuade your loved one to take out a Property and Financial affairs Lasting Power of Attorney for years, but your fiercely independent loved one refused to agree as like so many of us fell foul to believing that losing mental capacity is ‘something that will never happen to me’.
The frustration of companies and banks refusing to deal with you
In our role as independent Social Workers we would argue from experience that not having legal authority to deal with the financial affairs of a loved one, after they are unable to look after their own money, is one of the most stressful situations for families that we come across. The banks won’t deal with you, even worse they may even freeze your loved ones bank accounts once they have caught wind that they might be having problems with mental capacity. You might need to pay for urgent services or work on your loved ones home, or even sell a property to pay mounting care fees. However, even the most simple tasks like organising utility bills and paying for groceries can feel exasperating if you don’t have either a Property or Financial Lasting Power of Attorney in place or a Financial Deputyship, both of which allow you to deal with the property and financial affairs.
Lasting Power of Attorney or Deputyship
They grant roughly the same powers, so that you can then deal with the property and financial affairs of an individual who has lost the cognitive ability to deal with these matters themselves. In contrast to Deputyship, a Lasting Power of Attorney is an easier, and more cost effective option to set up and begin utilising. However, you have to have mental capacity (in accordance with The Mental Capacity Act 2005) in order to set up a Lasting Power of Attorney. Whereas a Deputyship can only be granted by the Court of Protection in cases where the individual has lost mental capacity to manage their own property and financial affairs. Deputyships can be a bit more costly too, along with the Court of Protection having more oversight of Deputies to ensure that the client is safeguarded.
A Lasting Power of Attorney or Deputyship may also be applied for to make decisions in the best interests of an individual for health and welfare decisions such as medical treatment or moving into a care home. It’s fairly common for applications for a Power of Attorney to be duel. For example the application is made for both health and welfare, and property and financial affairs. It is less common for a welfare Deputyship application to be made however.
What is a COP3
A COP3 is a statutory form which includes a specialist mental capacity assessment that is submitted to the Court of Protection when applying for a deputyship. The COP3 is an expert opinion as to the ability of the individual to cognitively manage that area of their lives.
Who can complete a COP3
The Court of Protection Deputyship application (COP3) process is split into two parts. Part A is usually completed by a legal or financial professional such as a Solicitor or Estate Planner, although the applicant can complete Part A themselves if they have a good eye for a form. Part B of the COP3 form can only be completed by a registered medical professional or a Social Worker. Historically, GPs were often approached to complete a COP3 capacity assessment. However, due to the rising pressure on the health service, most GPs seldom have the time to support these types of assessments, and those that are willing usually take many months to find the scope to complete the assessment. Additionally, most Local Authorities have also opted out of assisting with COP3 assessments, as they are equally snowed under addressing crisis cases and safeguarding. Our qualified Social Workers have extensive experience of completing all types of mental capacity assessments but in particular COP3’s, so you can be confident that not only will you be seen quickly, but that you are in trusted hands.
How much is a capacity assessment for COP3?
At Thornton & Lee we hate paying for things twice. Which is why if your legal or financial advisor has suggested a mental capacity assessment for a Lasting Power of Attorney, but during the assessment the mental capacity assessor concludes that unfortunately the donor lacks mental capacity to proceed with a Lasting Power of Attorney application, then Thornton & Lee will complete a COP3 mental capacity assessment to apply for a deputyship order instead at no additional charge. Please see our fees for further information.
The Impact of Digitising the Deputyship Application Process?
A frequent frustration of those applying to become a Deputy to the Court of Protection is how long the process can take from start to completion which is when the Judge finally signs off the Order, with applications having regularly taken a year or more to complete. Common complaints have also included lost paper forms adding further timely delays with the previous paper form application process. The legal industry have been waiting with baited breath for the Governments recently released new ‘online deputy application’ which had promised the goal of making a smoother and shorter process for those seeking to become a Deputy.
Part of the new digitalised Deputyship process also includes notifying the individual the Order is for, and three interested parties of the Order before the application is made, which is aimed at reducing wait periods for these notifications to have taken place which had previously occurred after the application had already been submitted to the Court of Protection. You can read more about applying to become a Deputy using the new online application on the Governments webpage here. Early reports from our legal colleagues seem to be improved efficiency and reduced time delays on Court Orders which is fantastic news. However, don’t worry if you are a member of the public worrying about having to do an online Deputyship application, as for the time being the Court of Protection will still be accepting paper form applications too.