What is the Court of Protection?

The Court of Protection is a Court based in London which was created under the Mental Capacity Act 2005.

The Court has the authority to make decisions about property and financial affairs, and the personal welfare of people who do not have the capacity to make those decisions for themselves.

The Court can exercise its authority by making an Order about a specific issue, or by delegating authority to make decisions to another person i.e. a deputy.

The Court will deal with any matters that are outside the scope of the deputy’s authority. It can appoint a new deputy or discharge an existing one if the person regains capacity.

You might need a Court of Protection lawyer if:

• You want a family member, friend or lawyer to take over the management of your financial affairs either now or in the future
• You are concerned about a loved one’s capacity to manage their affairs
• You are responsible for managing someone’s financial affairs (as a deputy or because you are appointed as an attorney under a  Power of Attorney)
• You are concerned about the way someone’s affairs are being managed.

We can put safeguards in place to ensure decisions are made in the best interests of a person who lacks capacity to manage their affairs.

What is a deputy?

A deputy is a person or a trust corporation appointed by the Court of Protection to make decisions on behalf of someone who lacks capacity.  They are generally appointed where the person who lacks capacity has not made an Enduring Power of Attorney or a Lasting Power of Attorney.

In matters relating to a person’s finances, a deputy is usually given wide powers to manage a person’s property and day to day financial affairs and act as the person’s agent.

The Mental Capacity Act, under which a deputy is appointed, states that all decisions made or action taken by the deputy, must at all times be made in the person’s best interests.

The Office of the Public Guardian (OPG) supervises deputies who are making decisions for those who lack capacity.  Every deputy, whether professional or lay, has to account each year to the OPG for all income received and expenditure made on behalf of the individual.

Why have a deputy?

When there is medical evidence concluding that an individual lacks capacity to make decisions themselves, they come within the scope of the Court of Protection. The court has authority to protect individuals who are vulnerable and potentially open to financial exploitation.

A deputy can assist with the following:

• Paying care costs and other expenses
• Collecting benefits, pensions and other assets
• Purchasing property
• Managing investments
• Preparing an annual tax return
• Applying for authority to execute a Will.

When to apply

If there is medical evidence that an individual lacks capacity to make their own decisions, an application can be made to the Court of Protection for a deputy to be appointed.

The application process can be lengthy.  Therefore, when there is evidence of incapacity, it is important that the application is made as soon as possible.  Until such time as the Court considers the application and makes an order appointing a deputy, nobody has authority to act on the person’s behalf.

Who should act as deputy?

Anyone over the age of 18 can be a deputy, provided the Court of Protection considers them an appropriate person to be appointed.

There are occasions when the Court, or indeed family members, will prefer the appointment of a lawyer. Examples include those circumstances where there is a significant damages award to administer; where there is disagreement among family members or where the individual does not have any relatives who are able and willing to act.. Indeed, it is very unusual for the Court to approve the appointment of lay deputies where there is a significant damages award to manage.

In damages cases it is usually possible for the lawyer’s estimated costs, for acting as the deputy, to be recovered as part of the overall claim.

Given the responsibilities the role brings a decision to apply to be appointed as a deputy for someone is a matter for careful consideration, and not a commitment to be entered into lightly. It is an onerous and often difficult role to fulfil.

How does it work in practice?

The main role of a financial deputy is to manage the property and financial affairs of the person who lacks capacity, for the benefit of that person. A deputy must act in that person’s best interests within the scope of the authority given by the Court of Protection, and is also accountable to the Court of Protection and Public Guardian.  A deputy can only make decisions which the person is unable to make for their self.

The Mental Capacity Act states that in order to act in a person’s best interests, a deputy must consider whether the person may have capacity to make the decision themselves at some time.  If this is not going to be possible, then in order to reach a decision the deputy must consider the person’s wishes, feelings, beliefs and values, and also consult with anyone named by the person, or any carer or other person interested in their welfare.