What is the Court of Protection?

The Court of Protection deals with the affairs of people who lack the capacity to make decisions for themselves.

Lacking the 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 a trusted person can step in straight away to take care of things. If there is no LPA in place, looking after someone’s affairs becomes a matter for the Court of Protection.

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What is the Court of Protection?

The Court of Protection is a division of HM Courts & Tribunal Service. It 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.

The Court of Protection appoints a ‘Deputy’ or ‘Deputies’, to make decisions for the person who lacks capacity.

What counts as a lack of capacity?

Lack (or loss) of capacity could be permanent, such as dementia or because of a serious injury, such as brain injury. There is also a short-term lack of capacity, where your ability to make decisions changes from day to day, such as mental health problems.

Who decides 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.

How is mental capacity assessed?

When a professional assesses mental capacity, they will look at:

• Whether you can understand the information related to the decision.
• Whether you can retain information for long enough to make a decision.
• Whether you can use and ‘weigh’ that information to make a decision.
• Whether you can communicate that decision, either verbally, in writing or with signals.

What decisions can the Court of Protection make?

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, how their money is managed and what medical treatment they should receive, for example.

The Court of Protection is also in a position to decide whether or not to appoint a Deputy to manage the person’s affairs.

What decisions can a Deputy make?

A Deputy can 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. For health and welfare, a Deputy can make decisions such as what care or medical treatment a person should receive.

The Court of Protection will issue an order that 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 of a property, for example.

Orders authorising ongoing decision-making are normally only given for property and financial affairs. The Court tends to prefer to grant authority for health and welfare matters on a single-issue basis.

Who can be appointed as a Deputy?

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 of Protection can appoint two or more Deputies to act for them.

As the responsibilities of deputyship can be demanding and complex, some families opt to appoint a professional Deputy, such as a solicitor. If there is nobody suitable to act as a Deputy or the person’s affairs are complicated or the estate is of high value, the Court of Protection may decide that a professional Deputy is necessary.

What responsibilities does a Deputy have?

The role of a 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 of Protection, and only if the person you’re acting for is unable to do so themselves.

If you take on the role of Deputy, 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.

Are Deputies supervised?

Yes. Deputies are supervised by The Office of the Public Guardian to ensure 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 what they are responsible for. Deputies must file annual reports with the Office of the Public Guardian, setting out their decision-making in the person’s best interests.

How do I apply to be a Deputy?

Making an application involves completing lengthy forms and supplying numerous supporting documents.

Applying to be a Deputy can be difficult and demanding, so getting specialist legal advice is a good idea. Once an application has been submitted, the Court of Protection can take four months or more to complete the process and appoint a deputy, however, complex cases can take a lot longer.

Contact our Court of Protection solicitors

Our solicitors are experts in all matters relating to the Court of Protection. To speak to a member of our team, call 0117 905 9791 or complete our online enquiry form.