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Get advice on Court of Protection issues

Dealing with the affairs of mentally incapacitated individuals requires specialist advice. Our experts in the Court of Protection are on hand to provide expert 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
  • dementia
  • 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.

Frequently asked questions

  • Who can be a Deputy?

    Anyone can be considered by the Court of Protection as a Deputy. A relative, friend, neighbour or professional representative e.g. solicitors, or local authority officers could be appointed. In complex cases, particularly those involving large awards of damages, the Court may prefer to appoint a professional Deputy.

    The Court might decide to appoint someone from its panel of Professional Deputies.

  • How is a Deputy supervised?

    The Public Guardian is responsible for the supervision of Deputies. The Court of Protection sets the level of supervision.

    The Deputy must account annually to the Office of the Public Guardian and may be called upon at any time to explain his or her actions.

  • How is a Deputy paid?

    A family member or friend who is appointed a Deputy will not be paid for taking on the role although out of pocket expenses can be reimbursed.

    This role is an appointment made by the Court of Protection and if a professional is appointed there will be a court order setting out how a professional deputy will be remunerated. This is usually in the form of the court assessing the Deputy's file and time spent and the costs, once agreed by the court, are paid from the protected party's funds.

  • How does a Deputy determine capacity?

    The Court of Protection requires a medical certificate (COP3) to be completed by an expert with relevant medical experience and this forms the basis of most deputy applications. Usually the protected parties will have a GP or consultant doctor who can complete the application but there are other medical professionals who can also provide this service.

    Assessing capacity is not something that a Deputy would do personally although an attorney must always be mindful of the protected party's cognitive ability at all times, as capacity can fluctuate over time and will vary from person to person.

  • How can I avoid the Court of Protection?

    If you have someone you trust implicitly, make a Lasting Power of Attorney in advance and allow the person of your choosing make decisions for you.

Key contact

Beverley Beale
Beverley Beale

Associate

+44 (0)116 242 8962 Email Beverley

Free consultation

Ready for the next step? Talk to our expert Court of Protection solicitors.

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Free consultation

Ready for the next step? Talk to our expert Court of Protection solicitors.

Book now
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