Dealing with the affairs of mentally incapacitated individuals requires specialist advice. Our expert Court of Protection solicitors are on hand to provide specialist and sensitive advice.
Court of Protection
The Court of Protection is a court that makes decisions about financial and welfare matters for people who cannot make decisions at the time they need to be made and where there is nobody else who can legally make those decisions for them. The Court of Protection safeguards the rights of and empowers vulnerable people who are considered to lack mental capacity.
The court has the authority to appoint a Deputy to make financial or welfare decisions for someone if they are unable to make those decisions for themselves and the Deputy must act in accordance with the provisions of the Mental Capacity Act 2005.
A person for whom a Deputy is appointed is known as a 'protected party'.
Whilst many people will consider or claim themselves to be 'next of kin', this position has no legal status. The only person able to make decisions and manage the finances of someone who lacks the capacity to do so for themselves is a Deputy appointed by the Court of Protection or an Attorney acting under a registered Lasting or Enduring Power of Attorney.
Mental incapacity can, unfortunately, affect any of us, at any time, meaning that we may need help to manage our finances or make welfare decisions
Lacking mental capacity
People may lack mental capacity where for example they have:
- a serious brain injury or illness
- learning disabilities
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
Some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner, but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may change from day to day.
Needing more time to understand or communicate does not mean you lack mental capacity. For example, having dementia doesn't necessarily mean that someone is unable to make any decisions for themselves. Where someone is having difficulty communicating a decision, an attempt should always be made to overcome those difficulties and help the person decide for themselves.
Court of Protection Deputy
A Deputy appointed by the Court of Protection may be appointed to make decisions about:
- Property and financial affairs — this includes making sure the protected party is receiving all the funding and benefits he or she is entitled to.
- Health and welfare — which might include decisions about living arrangements, contact with other people, and medical treatment choices.
The Deputy must be appointed by and can only act under an Order from the Court of Protection and the Order sets out the scope of the appointed Deputy’s authority. In addition, the Deputy must work within the rules set out in the Mental Capacity Act 2005 and the Code of Practice that accompanies this Act and there is an overriding duty to act in the best interests of the protected party at all times.
It is important to remember that before a Deputy can make a decision on behalf of the protected party, he or she must be given all the help needed to make the particular decision for themselves (if possible). A person cannot be treated as lacking capacity just because he or she makes a choice that other people think is unwise.
Appointment of a Deputy
If someone has not made a Lasting Power of Attorney and they are assessed as no longer having capacity to make a decision or decisions for themselves, a Deputy will be appointed. This is common for people with dementia, for instance.
Deputies are more commonly appointed by the Court of Protection to make property and financial decisions (a Property and Affairs Deputy). The Deputy will ensure that they are receiving all eligible benefits, pay any care home charges, deal with property matters and all other financial and property matters within the scope of authority provided under the Order.
A family member could be appointed or the court may appoint someone from its panel of Professional Deputies. Beverley Beale, who heads Weightmans’ Court of Protection team, is a member of the court’s panel and acts as a professional Deputy to many clients.