Back to Basics: Online Court of Protection applications

In January 2023, the Court of Protection (COP) successfully introduced its online filing system for applications relating to the appointment of a new property and affairs deputy. At the same time, the new upfront notification process was introduced, along with a new assessment of capacity form, COP3. 

The paper process for new applications is due to be phased out imminently and so it is important that practitioners look to utilise the online portal when making new deputyship applications going forward. 

Despite the changes being largely positive, navigating the new processes can be tricky. This article will provide practitioners with information on when and how to use the new online process going forward. It will also summarise the new notification process and the changes made to the COP3 form. Updates are constantly being made to the online portal. The information in this article is up to date as of October 2023. 

Overview of application process 

To start, it is useful to provide an overview of the application process. The required steps are: 

1. Obtain a COP3 form.
2. Deal with the upfront notification process by way of the new COP14PADep and COP15PADep forms. Allow 14 days to pass and to collate any responses. If all parties indicate agreement, you can proceed to submit the application. If they do not agree, you should seek to reach an agreement. 
3. Complete the online process. 
4. Await order or directions. Usually this requires that you take out a security bond before the court releases the order. 
5. On receipt, notify the protected party (P).  

When can an application be made online?  

It should be noted from the outset that the new online process can only be used when applying for a brand-new property and affairs deputyship order. This means that practitioners cannot use the online process to make any other application, unless that application is being made at the same time as the new deputyship application. 

For example, practitioners cannot use the online process to apply to replace a deputy, or where they are already a deputy, and they need to make an application for further specific authority. Such applications will need to be made on paper. It is also not possible to use the portal for any welfare-related matters. 

There are two online application processes: the first for legal professionals; the second for lay individuals. (Links to the online services can be found at the end of this article.) If a client instructs a practitioner to apply for themselves to be appointed as a deputy, they should utilise the legal professional’s link and there is an option to name themselves as the applicant’s legal representative. If the client is looking to make the application themselves under a practitioner’s guidance, they should be directed to use the services for other individuals. 

Timescales 

One of the greatest benefits of the new system is that the timescales for the turnaround of a new order is due to improve. Judge Hilder spoke about this at the Professional Deputies Forum (PDF) conference in September. She explained that while there had initially been a backlog in processing new orders, the court was now working towards an eight-week turnaround time. Unfortunately, PDF members report ongoing delays of many more months, despite using the new online portal. This may well be due to the earlier backlog, but managing expectations and providing realistic timescales for receipt of an initial order is important.

Step 1: COP3 

The starting point for any application is the capacity assessment. In order to submit an application to be a property and affairs deputy, practitioners will need a capacity assessment by way of a COP3 on the specific issue of an individual’s capacity to manage their property and affairs. 

In July, a new COP3 form was launched. In summary the changes are as follows:

• When completing part A, the applicant is now required to set out any practicable steps they know of which may help the person being assessed to make their own decision and support the assessment process. A practitioner may not have a huge amount of insight into the individual’s needs at an early stage and so it might be useful to direct the assessor to any treating medical professionals or appropriate family members to support this process.
• The assessor is now required to set out their experience in assessing capacity in more detail.
• The form now runs more in line with the test as set out in the Mental Capacity Act 2005. 

While there have been no formal announcements to say that the old form should not be used or that the old style will not be accepted by the court, practitioners should ideally use the new form going forward, otherwise they could face delays in the processing of the application. When making an application online, applicants will be given a prompt to upload the COP3 form. This is not something that can be completed online. 

Step 2: Notification 

At the same time as launching the online system, the upfront notification process was introduced. The new Practice Direction 9H confirms the changes and supplements part 9 of the Court of Protection Rules 2017. It can be found linked at the end of this article. Initial feedback from the court indicates that the new process has increased the opportunity for encouraging parties to reach an agreement before the application is submitted. It has also minimised the administrative burden on the court, as they no longer need to deal with the processing of the application before notification takes place. That time is now absorbed before submission. 

Dealing with notification 

Before submitting an application to the court, practitioners will be required to notify the person who may lack capacity and also three other close individuals, in the order listed in Practice Direction 9B, paragraph 7. 

The new COP14PADep (for notifying the individual) and COP15PADep (for notifying persons with an interest) forms are now used to deal with both notification and acknowledgement. Both forms give the individuals an opportunity to say whether they agree to the application and, if not, to explain why. This means there is no longer a need for a COP20A or COP20B to be filed at the notification stage, or for a COP5 to be sent with the notification forms. 

Once notification has taken place, the applicant must allow 14 days for any responses before making an application. If no responses are received, you can inform the court during the online application process and agreement will usually be assumed. 

It is important to note that any notification documents must be submitted within three months of notification taking place. If you are looking to submit after that period, notification will need to be repeated. The court will not accept the outdated forms. 

COP14PADep

When notifying the individual who the application is about, this must be carried out in person. You should complete sections 1-3 of the form before notifying the individual. You will need to name the applicants. If there are multiple proposed deputies, name one, then insert the remaining names when completing section 3.

Section 4 will need to be completed once notification has taken place. While section 4 does say that you do not need to complete the form if you carry out notification yourself, it is good practice to complete the form for the record, and so that anyone completing the online process on your behalf has the relevant information to hand. 

You will be prompted to insert relevant information about notification during the online process. If you or your legal representative carried out notification, you will be required to complete the COP14PADep questions online and will not need to upload the form, unless the individual has raised objections or comments. 

If you used an agent to carry out notification, they will need to complete section 4 onwards. You will be prompted during the online process to say whether you used an agent and, if so, given the opportunity to upload the completed forms. 

Section 5 should ideally be completed by the individual who the application is about, if they are able to do so. 

There has been some confusion raised over who signs the COP14PADep form. The forms should be signed by the applicant / their legal representative or their agent at section 4.8 and then the individual notified should sign at section 5, if they are able to do so. 

COP15PADep

When notifying other close individuals, this can be carried out by post, email or in person. It is always good practice to provide the COP14PADep with a cover letter, reminding the notified individual that they can take legal advice before returning the forms. You will need to complete sections 1-4 before sending the forms. 

Section 5 onwards will then need to be completed by the individual notified and the statement of truth at the end should be signed by the person notified and not by the applicant or their legal representative. 

During the online process, you will be required to name the persons with an interest in the application and the date upon which they were notified. Where no responses have been received, applicants will be able to inform the court during the online process and you will not be required to upload the forms. Where comments or objections are raised, you will need to upload the forms. 

There is also an option on the online portal to list anyone you are unable to notify and to provide further information about why that was not possible. 

What to do if you receive an objection during the notification process? 

If objections are made on the COP15PADep or COP14PADep, the applicant will see those on the returned form. The applicant should, as far as possible, look to address any concerns and reach agreement before moving forward, otherwise they run the risk of entering contentious proceedings and potentially significant legal costs. 

If you cannot reach an agreement regarding an objection, it would be good practice to follow up with a letter reminding that individual to take legal advice and enclosing a COP5 form.

On receipt of the forms, an authorised court officer (ACO) will review the application, then issue the application and notify the applicant. If an objection is raised, the ACO will, at the issuing stage, allocate the application to the property and affairs pathway set out in part 3 of Practice Direction 3B – case pathways. 

The ACO will also need to consider what further directions should be given and who should be named as a respondent for service. The application may be referred to a judge, depending on the complexity of the objections raised. At this stage, the court may also provide for the listing of a dispute resolution hearing and request that the costs details for each party are made available at the dispute resolution hearing.

If an objection is resolved after the application is made, you can write to the court providing updated notification forms and your online reference number so that they can link the information through the digital pathway. 

Notification of P on receipt of the order 

Once you have the order in place, you should complete the process for notifying P by way of a COP14 form within 14 days of receipt of the order, along with providing a COP5. A COP20A form will then need to be completed and should be held on file. 

Notification when dealing with follow-up applications.

You should use the old-style notification forms (COP14, COP15, COP20A and COP20B) to deal with all other applications. 

Step 3: Navigating the online system

Setting up an online account

Once the notification process has been completed, you can apply to submit the forms through the online portal. The online portal can be accessed on the Court of Protection gov.uk website (also linked below). On the portal you will make your way through the online journey completing the relevant information as requested. 

There is no need for a login or for access to be granted, but you will need a payment by account (PBA) number. This is a free service enabling legal firms and organisations to pay the court by direct debit. Most firms will already have this in place. If not, then you will need to register with the HM Courts & Tribunals Service (HMCTS). The expected waiting time to set one up is one week. 

Completing the online application

It is best practice to have all of the completed forms ready to upload before you complete the online applications. The forms you will need to have ready are: 

• fee remission forms (if required – otherwise the fee will be taken from the PBA account)
• COP1 information – by way of a questionnaire or otherwise 
• COP3
• COP1A
• COP4 (if you have a master COP4 held with the COP, you can provide the date of the COP4 and the court will locate this and match it with the application) 
• COP15PADep – minimum of three notified individuals 
• COP14PADep
• draft order, and 
• any other information – for example COP9, COP24, covering letter detailing any other information. 

The court asks that you name your forms before uploading them, using the following format:

• the date of the application in the order of year, month, and day 
• the surname and first initials of the person who may lack mental capacity, and 
• the form name. 

For example, if you were applying to make an application for John Smith on 10 October 2023 and wanted to upload the help with fees form, you would name the form ‘2023-10-10-Smith-J-helpwithfees’.

COP1 

The initial questions you are asked when you start the online application replicate the COP1 form and so there is no longer a need for this form to be completed. It is useful to introduce a standard questionnaire in your internal process that can be sent to those helping you to complete the information for the forms and/or so that you have the information collated to hand before making the application. 

Paralegals and legal assistants will usually support with the completion and filing of an application online, under the supervision of a legally qualified individual. This has caused some confusion when completing the applicant details on the forms. The applicant will be the named deputy(s) or trust corporation. There will then be an option to put in the name of a legal representative. That would usually be the supervising solicitor’s name. 

COP1A – financial information 

You will need to upload a completed COP1A. Owing to the size of the form and data collected, it is not yet possible to provide the COP1A information via the digital pathway. However, the court is working on introducing this in the near future. 

Other information 

You will be asked to upload a copy of the COP3, COP4 and notification forms. The previous section deals with notification and what information needs to be uploaded and when. 

At the end of the online process, you will be asked if you would like to upload any other information in support of the application. At this stage, you can upload any covering letters, COP9, COP24 and draft orders.

At the end, you will be given an option to review all of the information together and change any information before submission, Upon submission, you will be emailed a copy of the application along with a reference number.

Save and return 

There is a now a save and return option on the portal. However, it should be noted that on saving the application you will need to enter an email address and security answer, and then a link back to the application will be sent to that email address only. It can be shared; however, the link only allows for one-time access. The person accessing the application via the link will need to create a new one, otherwise they will lose access to the whole application.   

An applicant will have 28 days to go back and complete the application online, otherwise the application will be lost, and the applicant will need to start again. The system allows around one hour to submit the application. If there are errors during the online process (for example, missing information), a notification will come up on the screen and you will not be allowed to move through the application process until the relevant sections are completed.  

Step 4: Await directions or an order

At present, the portal is not live and so it is not possible to obtain updates. It is hoped that the portal will be developed to the point where you can login and track applications. 

On receipt of the application, an ACO will issue the application and notify the applicant. Thereafter, further directions will be issued, or an order will be granted. The order will be sent to the applicant / deputy’s email address, and usually this is released after the court has received confirmation that the security bond is in place. 

Common questions and answers

I am applying for a new deputy order – can I do this online?	Yes, practitioners should avoid using the paper submission process for new applications as this is due to be phased out imminently.
How do I apply for a change of deputy?	This remains a paper application, but the court is looking to extend the online application process to cover change of deputy applications shortly.
How do I use the online service if I am a panel deputy?	The court is looking to include information to allow panel deputies to complete the online process more easily, as it is recognised that this hasn’t always been possible given that they do not hold all relevant information to apply and work through the online process. Any information that needs to be given to the court outside of the normal online application process, should be set out on a cover sheet and uploaded as an additional document.
How do I apply for an interim deputy order?	You can apply for a deputy order in the usual way online. You can then set out what interim orders you require at the very beginning of the online application process when you are prompted to inform the court of any other authority you are requested.
How do I obtain additional authority at the same time as applying for a new deputy order?	You can only apply for this online at the same time as applying for a brand-new deputy order. If you are seeking additional authority at the same time as making the initial application, you should complete the very first optional box in the online application process to inform the court and then upload any additional support information when prompted to do so at the end of the online process.
How do I obtain additional authority when I already have an order in place?	If you already have an order, you will need to apply on paper for the additional authority.
How do I deal with an application for a child trust fund?	These should be made using the paper application process.

Step 5: Notify P

As above, you should use the old-style notification process and forms to notify P of the final deputy order.