Court of Protection
The Court of Protection makes decisions on behalf of people who lack mental capacity and where there is no power of attorney in place. A person may lack mental capacity due to dementia, illness, learning disability or accident.
Decisions can be made by the court about welfare or financial matters.
The Court of Protection is responsible for:
- Determining whether a person has mental capacity to make a particular decision for themselves;
- appointing deputies to make ongoing decisions on behalf of people who lack mental capacity;
- permitting people to make one-off decisions on behalf of someone who lacks mental capacity;
- handling urgent applications where a decision must be made on behalf of someone who lacks mental capacity;
- making decisions about powers of attorney and considering any objections to their registration;
- considering applications to make statutory wills or gifts;
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
Application for Court of Protection assessment
An application is made for an assessment of the mental capacity of the individual to whom the application relates and a court fee must be paid.
Before making any decision about mental capacity, the court will want to hear from relatives, friends, carers and medical advisers. Full financial disclosure is also required. Once satisfied, the court will issue a court order.
Appointment of a deputy
A deputy is the person or persons appointed by the Court to deal with the affairs of the person who has lost capacity.
Types of deputy
There are 2 types of deputy that you can be applied for which are similar to attorneys under a lasting power of attorney.
(i) Property and financial affairs deputy
The deputy can take full control of the financial affairs of the individual including paying off all their debts, apply for benefits that they may be entitled to and sell their home to pay for residential or care home fees.
(ii) Personal welfare deputy
Provides responsibility to make decisions about the individual’s medical treatment.It is less common for the Court to grant this type of deputyship, and professional advice should be sought at the earliest opportunity.
The responsibilities of a deputy
A deputy must consider the individual’s level of mental capacity every time a decision is made for them. This is because you can’t assume that their mental capacity always stays the same. A court order from the Court of Protection will say what you can and can’t do.
Reporting to the Court of Protection about decisions
Deputies are expected to complete an annual account documenting what decisions have been made on behalf of the individual. This includes all expenditure made on behalf of the individual so it is important to retain all receipts and statements.
No longer acting as deputy
If the appointed deputy is no longer able to act for the individual, another application will need to be made to the court for a replacement deputy to be appointed. Professionals such as solicitors may act as deputies if appropriate (see below).
Individual regains capacity
An application to the Court of Protection will need to be made dispensing of the current deputyship order. Appropriate medical evidence will need to be submitted confirming the regaining of capacity.
Payment of deputies
Only a professional deputy can be paid for dealing with financial affairs. A lay deputy can claim reasonable expenses.
A professional deputy can be appointed in various circumstances including if the donor or attorney has been found to have abused the individual in relation to their care or finances.