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Court of Protection jargon buster

Its common following a severe brain injury for the injured party to lack the mental capacity to make certain decisions on their own, and so the Court of Protection and Deputies become involved to assist with those decisions.

It can be overwhelming initially, when so much of life has been turned upside down, to suddenly be faced with legal terms you may be unfamiliar with.

With the help of Tonina Ashby, from Brain Injury Group member law firm Tollers LLP, we look at the terms you may hear and what they all mean.

Court of Protection jargon

Court of Protection

A specialist UK Court responsible for making decisions on behalf of those who lack the capacity to do so for themselves.

Office of the Public Guardian

Most commonly known as the “OPG”, this organisation works closely with the Court of Protection and is responsible for registering and keeping a record of Lasting Powers of Attorney, supervising Deputies appointed by the Court of Protection and investigating allegations of misconduct or abuse by Attorneys and Deputies.

Find out more about the Court of Protection

What is the Court of Protection?

Who is P?

“P” is the letter by which the Court refers to the person who is subject to the Court’s decision: the Patient or Protected Party.

Deputy Order/ Deputyship

There are two types of Deputy Order: a Deputy Order for Property and Financial Affairs and a Health and Welfare Deputyship. Deputy Orders grant the authority to a trust corporation, specific individual (or individuals) to make decisions on behalf of P (with reference to the specific permissions set out in the Deputy Order).

Read our article: ‘Can a deputy make family care payments?’

Can a Deputy make family care payments?

Capacity Assessment

This is the name given to the report which the Court requires in order for it to make decisions on any application submitted to it. The Court needs to establish that the person cannot make that particular decision for themselves before it can have jurisdiction to decide. The form required is a COP3. This is usually completed by a Social Worker or Medical Practitioner.

Read our article on the 5 Principles of the Mental Capacity Act

The 5 Key Principles of the Mental Capacity Act

Official Solicitor

This is an independent Solicitor appointed in some, usually complex, Court of Protection cases to represent the individual who lacks capacity. The Official Solicitor has their own costs and acts on behalf of the person the application is about, to negotiate the best option for that person and to ensure the outcome which is in that person’s best interests.

To find a specialist Court of Protection solicitor, who can offer free initial advice, visit our Court of Protection Panel

Court of Protection panel

Gifting Application

This is a specific application made in the Court of Protection. It is required to be made by Attorneys and Deputies in cases where a gift is being proposed from P’s assets which is outside the usual rules of gifting. The application will consider the reasons for the gift, the reasonableness and proportionality to P’s estate and what is in P’s best interests.

Trustee Application

This is a specific application required to be made to the Court of Protection where there is co-ownership of land which needs to be sold. This application may be required to appoint additional “Trustees” to sign paperwork to sell land on behalf of P where there is a co-owner. Whether this is required depends upon how the land or property is owned at the Land Registry and who is legally entitled to sell it.

Statutory Will

This is another application which is made to the Court of Protection. The application is for a Will to be made on behalf of a person who otherwise does not have capacity to make a Will under the usual rules. These applications often involve the Official Solicitor and require a great deal of evidence to establish that any proposed Will is in P’s best interests. Once approved, the newly drafted Will can be signed by P’s approved representative and it will be treated as if P him/herself had signed.

Find out more about making a will after a brain injury

Making a will after suffering a brain injury

Deprivation of Liberty Safeguard (DOLS)

This is the legal terminology for an application which is considered by the Court of Protection to consider whether it is justified to deprive a person of their liberty. Most commonly used in cases of residential care home placements where residents are not permitted to come and go as they please, DOLS are quite common. These can however, be disputed or objected to on behalf of P and are subject to further review and lengthy proceedings at the Court.

Read more advice on the Court of Protection

Court of Protection

Trust

A Trust is when a person passes assets to others (known as Trustees) to hold and to manage those assets for the benefit of a specified person or group of people. This can have the benefit of ring-fencing assets in law and offers some degree of protection, depending on the circumstances.

Personal Injury Trust

This is a type of Trust specifically set up to hold compensation received from a Personal Injury claim. The Trust will be in writing and is legally binding. The benefit of creating a Personal Injury Trust is to separate your compensation from your other assets so that this money is protected, used for the purpose for which it was intended and to ensure this is appropriately disregarded in any future calculations for means-tested benefits and care fees.

Find out more about Personal Injury Trusts

What is a Personal injury trust?

Deputy Report / Annual Report

When a person is appointed as a Deputy under a Deputy Order, they are required to account each year to the OPG for all income, outgoings and assets on behalf of P. This is submitted to the OPG in an annual report.

Read our article: ‘Help, I’ve been asked to be a Deputy, what next?’

Help, I’ve been asked to be a deputy! What next?

This article has been produced by Tonina Ashby of Tollers LLP

Tonina is the Head of Elderly and Vulnerable Client Unit at Brain Injury Group member firm Tollers LLP. Tollers have offices in Corby, Milton Keynes, Northampton and Stevenage.

LAWS – providing initial free legal advice

Legal & Welfare Service (LAWS) online for brain injury help, advice and support

What is the Brain Injury Group?

Brain Injury Group is a free service designed to connect those affected by a brain injury (whether there is a claim or not) to a range of experts who may be able to offer advice and assistance.

If you’d like to find out more about the work of Brain Injury Group, you are at the right place! You can follow the links below to:

The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.

As well as providing legal and welfare advice, Brain Injury Group provide training for legal, health and social care professionals. View our award winning Brain Injury Group brain injury training events.

The Brain Injury Group brain injury directory

The BIG Brain Injury Services Directory

How can Brain Injury Group help you?

If you would like advice about bringing a brain injury claim, capacity, deputyships, managing the award of compensation or any other aspect of brain injury welfare, legal or financial advice, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:

  1. Call us on 0800 612 9660 or 01737 852203
  2. Email us at enquiries@braininjurygroup.co.uk
  3. Complete this short enquiry form and we’ll get back to you
  4. Find a specialist brain injury solicitor near to you