What is the Court of Protection?
The Court of Protection is the judicial body responsible for making decisions about the management of the affairs of those individuals who lack the mental capacity to do so themselves. Those decisions may relate to property and finance, or questions of health and welfare.
The Court of Protection is responsible for:
- Deciding whether a person has the mental capacity to make a decision for themselves.
- Appointing family members or friends as Deputies to make best-interest decisions on behalf of the individual who lacks mental capacity.
- Giving permission for people to make one-off decisions on behalf of a person who lacks mental capacity.
- Handling emergency applications for urgent decisions on behalf of someone else.
- Making decisions on both lasting power of attorney and enduring power of attorney – this includes considering objections to their registration.
- Deciding when someone can be deprived of their liberty under the Mental Capacity Act.
What is Deputyship?
A deputy is someone who can make decisions on behalf of someone else who lacks the mental capacity to make them for themselves; they are appointed by the Court of Protection. Ideally, someone who lacks capacity will already have designated Lasting Powers of Attorney to manage their affairs if anything happened to them. If this wasn’t possible, or isn’t the case, then a trusted person can apply to the Court of Protection to take deputyship of the incapacitated person’s affairs.
There are two types of deputy:
- Property and financial affairs – a financial deputy will look after monetary issues, such as paying bills and ensuring finances. If needed to fund care, you can also sell their property.
- Personal welfare (health) – a personal welfare deputy will make decisions about medical treatment and how someone is cared for, whether at home, in hospital or in a care home.
If you apply to the Court of Protection, there will be an assessment of the mental capacity of the person you have concerns for, and you will need to pay some costs. If they find that the person does lack the capacity to make decision, they will then decide whether to issue a court order.
The process will involve finding out as much as possible about the person in question, talking to family, friends and other interested parties, such as carers.
If you are appointed as a deputy, you are responsible for helping make decisions or making decision in their entirety for someone else. You must not assume that their mental capacity is the same for every decision, so for every decision you must consider their ability to make the decision. The court order will explain the parameters of your role.
As a deputy, you will need to complete an annual account that records the decision you have made, so it’s important to keep records, receipts and bank statements. If there is a reason you can no longer act as a deputy, a new deputy can be appointed by way of another application to the court.
If the person regains capacity, you will need to apply to the court to dispense the deputyship order in place, providing supporting medical evidence.
Professional deputies manage the affairs of those who lack capacity and don’t have anybody to help them. These people are usually vulnerable, and it’s vital that their assets and health are looked after by someone with their best interests in mind.
We have two professional deputies in our team, all of whom are members of the Office of the Public Guardian specialist panel; Alex Elphinston and Donna Holmes. Our team provides a personal, specialist and professional deputyship service for everyone. We don’t believe that a one-size-fits-all solution exists, so we work alongside our clients and those who care about them to help each person to focus on what is important to them and to work towards their personal goals.
Whatever your situation, our expertise in this niche area enables us to give clear, practical advice through every step of the process.
Find out about how we can help you with Court of Protection...
Head of the personal planning team
We have been recognised for the work we do
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.