A guide to the Court of Protection part 1: FAQs

I don’t know whether any of you watched the Ross Kemp series last night (18 June) on ITV that gave a unique insight into the devastating effects of Dementia, but it reminded me of our Court of Protection clients. Dementia is devastating for both the sufferer and surrounding family members and is a disease to which there is no cure.

If you want to help support people with Dementia, especially during lockdown when many sufferers have been left feeling isolated and frightened, Alzheimer’s Society has some fantastic opportunities to get involved. Including a befriending service to alleviate loneliness amongst the older members of our society. You can give as little or as much time as you are able to.

The Court of Protection is very important as it ensures that people who lack capacity are safeguarded and their best interests are met concerning decisions that they are, due to lacking capacity, unable to make themselves. We thank the Mental Capacity Act 2005 for giving rights and protection to the most vulnerable members of our communities.

This is the first of a five-part series in which I will discuss all things Court of Protection and how our dedicated team can help you and your loved ones. In this article, I will provide answers to FAQs about the Court of Protection and next week we will be covering Statutory Wills.

What is the Court of Protection?

The Court of Protection makes decisions regarding health and welfare (for example, where someone should live or who they should have contact with) and the financial affairs of those who don’t have the mental capacity to make the decision themselves.

How could someone lose capacity?

There are lots of ways that someone can lose capacity, for example:

• Suffering from a brain injury;
• Dementia;
• Other memory issues; or
• Learning disabilities.

What is a Court of Protection Deputy?

The Court of Protection can give the decision-making powers described above to a friend or relative of the person who lacks capacity. A Deputy is appointed by the court when someone lacks capacity and there is no Power of Attorney in place. A Deputy will usually make decisions for someone who loses capacity on a long-term basis.

Who is the Office of the Public Guardian (OPG)?

The OPG is a government agency that oversees Deputyships and Attorneyships. The OPG ensures that Deputies and Attorneys are carrying out their legal duties.

The OPG will take action if a Deputy or Attorney is found out to not be carrying out their legal duty. Including but not limited to revoking a Deputyship if there are concerns regarding the actions of the Deputy. If you have concerns that someone you know may be suffering from financial abuse by their Deputy, you should contact the OPG. I would encourage you to provide as many details to the OPG as you can and they will investigate the allegations.

Who can be appointed by the Court of Protection to act as a Deputy?

Anyone who is 18 and over can be appointed as Deputy if the court deems them to be appropriate. Deputies can be close relatives or friends of the person who has lost capacity.

The court can appoint two or more deputies for the same person, on a “joint basis” where deputies must agree on decisions or a “joint and several basis” where deputies can make decisions on their own or with the other Deputies.

When is a professional Deputy appointed?

A Deputy can also be a solicitor. We have three professional deputies in the team (Doug Houghton, Donna Holmes and Clare Burke) who have vast experience in making financial decisions on behalf of people who lack capacity. The court will appoint a solicitor when there are very complex decisions to make, large sums of money to manage and administer or simply because there is no suitable family member or friend to act.

Sometimes there are family members or friends who are appropriate, but they don’t want to be involved with their loved one’s financial affairs or find the legal duties imposed on a Deputy too onerous. A solicitor would be able to act instead.

What kind of decisions would a Deputy need to make?

All decisions must be made in the best interests of the person who lacks capacity. The Deputy should only make decisions when the person is unable to make the decision themselves, for example, someone could have capacity to handle small amounts of money but not larger amounts of money. Encouraging the independence of the person that the Deputy is making decisions for is incredibly important.

I am a lay Deputy and I need help making an application to the Court of Protection. What should I do?

We make applications for the appointment of health and welfare and financial affairs Deputies to be appointed daily and can make this application on your behalf. If you need assistance, please get in touch.

You may also need to make an application to the Court of Protection if, you are already appointed as a Deputy and you need to, for example:

• Make a Statutory Will;
• Make a Gift; or
• Sell a Property.

Further information

If you are unsure whether you need to make an application to court, please get in touch and we can discuss your options.

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