The Court of Protection has recently decided that an Attorney appointed under a Lasting Power of Attorney was allowed to make gifts from the more…
How can the Court of Protection help me?
The Court of Protection deals with the affairs of people who lack the capacity to make decisions for themselves
Loss of capacity to make decisions can happen to any of us, whether through illness or injury. A previously set-up Lasting Power of Attorney (LPA) means that if the need arises, a trusted person can step in straightaway to take care of things.
But if there is no LPA in place, looking after someone’s affairs becomes a matter for the Court of Protection. Barcan+Kirby Partner Tom Sharkey puts us in the picture.
First of all, what is the Court of Protection and how did it come into being?
The Court of Protection was created under the Mental Capacity Act 2005 to safeguard the rights of vulnerable people who have lost the capacity to make decisions for themselves. Loss of capacity could be due to conditions such as dementia or because of serious injury, such as brain injury. If someone is no longer able to make their own decisions, the Court of Protection has the authority to make decisions on the person’s behalf or can appoint what’s known as a deputy to do so. A deputy is normally a relative or close friend, or a professional deputy could be appointed, such as a solicitor.
Who is in a position to decide if someone has lost capacity?
A decision about whether someone has lost capacity is made by The Court of Protection, and is based on medical evidence provided by doctors, psychologists or other mental health professionals.
What sort of decisions can the Court make for someone who lacks capacity?
The Court can make decisions about a person’s property and financial affairs, and their health and welfare. This could include where a person should live, for example, how their money is managed and what medical treatment they should receive. The Court is also in a position to decide whether or not to appoint a deputy to manage the person’s affairs.
What sort of decisions is a deputy able to make on the person’s behalf?
A deputy is able to apply to make single or ongoing decisions about a person’s property and financial affairs, their health and welfare or both. For property and financial affairs, this could include authorisation to manage bank accounts and investments and pay bills, and for health and welfare, decisions such as what care or medical treatment a person should receive.
The Court will issue an order, which specifies what actions and decisions the deputy can and can’t make. Depending on the circumstances, this could be general or limited powers, which means that another application may need to be made to the Court for permission to do something that is not specified, such as deal with the sale a property, for example.
In reality, orders authorising ongoing decision-making are normally only given for property and financial affairs, with the Court on the whole tending to prefer to grant authority for health and welfare matters on a single-issue basis.
Who can be appointed as a deputy and what relationship must they have with the person?
Anyone aged 18 or over can apply to be a deputy. They are usually family members or close friends of the person concerned, and the Court can appoint two or more deputies to act for them.
As the responsibilities of deputy-ship can be demanding and complex, some families opt to appoint a professional deputy such as a solicitor. In some cases, for example where there is nobody suitable to act as deputy or the person’s affairs are complicated or the estate is of high value, the Court itself may decide that a professional deputy is necessary.
The role of deputy clearly carries responsibilities. What obligations do they have?
The role of deputy carries a lot of responsibility, and every decision must be in the person’s best interest and taken with considerable care. As a deputy, you can only make decisions as specified by the Court, and only if the person you’re acting for is unable to do so for themselves.
If you take on the role, you will need to keep records of everything you do on someone’s behalf and keep copies of all relevant paperwork and documents, such as receipts and bank statements. You will also need to file an annual report explaining all the reasons for the decisions you’ve made and why they are in the person’s best interest.
Is it necessary for deputies to be monitored by anyone?
Yes it is. Deputies are supervised by The Office of the Public Guardian to ensure that they comply with the Court’s order and act in the best interest of the person concerned. Levels of supervision will vary depending on the deputy and the things they are responsible for.
If I wanted to apply to be a deputy, how would I go about it?
Making an application involves completing lengthy forms and supplying numerous supporting documents. It can be a difficult and demanding process so getting specialist help is often a good idea. Once an application has been submitted, the Court of Protection can take four months or more to complete assessments and appoint a deputy, however, complex cases can take a lot longer.
This article is from the latest Barcan+Kirby magazine – to read the full publication, click here.