Court of Protection

The Court of Protection is a specialist Court, created by the Mental Capacity Act 2005, which makes decisions on financial and welfare matters for people who lack the mental capacity to make those decisions themselves. Although its main office is in London, the Court operates through regional hubs across England and Wales. Cases are heard primarily by District Judges and a Senior Judge, sometimes a High Court Judge.

The Court’s work broadly falls into two categories: property and financial affairs, and health and welfare. In every case, the Court must act in accordance with the Mental Capacity Act and ensure that any decision made is in the person lacking capacity’s best interests.

What does the Court of Protection do?

• Determines, based on the evidence, whether a person lacks the mental capacity to make specific decisions about their property, finances, or personal welfare.
• Appoints Deputies to make decisions on behalf of someone who lacks capacity.
• Considers applications for Statutory Wills and for gifts made on behalf of a person who lacks the capacity to make those decisions themselves.
• Deals with issues relating to Powers of Attorney, including objections or concerns raised about Powers of Attorney.
• Handles urgent or emergency applications where immediate decisions are required.
• Makes decisions about whether a person can lawfully be deprived of their liberty under the Mental Capacity Act.

Expert guidance when a loved one can no longer manage their affairs.

When someone loses the mental capacity to make decisions for themselves, it can be an emotional and challenging time for those close to them. In these circumstances, an application to the Court of Protection may be required to appoint a Deputy to act on their behalf. A Deputy is legally authorised to make important decisions regarding a person’s finances and/or welfare, providing vital protection and peace of mind.

How we can help

Our specialist Court of Protection solicitors are here to support you every step of the way. We understand that this process can feel overwhelming, and we aim to make it as straightforward and stress-free as possible.

We will:

• Manage the entire deputyship application on your behalf.
• Ensure that all required documents are prepared and submitted to the Court for the specific application being made.
• Provide clear, practical advice tailored to your circumstances.
• Keep you informed at every stage of the process.

The Deputyship Process

Capacity Assessment: A capacity assessment is conducted to determine whether the individual lacks the mental capacity to make decisions. This assessment is often carried out by medical professionals or social workers.

Deputyship forms: The prospective Deputy must complete the relevant Deputyship application forms, which include details about the individual's finances, family, and the specific decisions the Deputy will be authorised to make.

We will complete all Court of Protection forms, ensuring every detail is accurate to avoid unnecessary delays.

Notifying interested parties: The Court of Protection requires the applicant to notify certain individuals, such as close relatives of the deputyship application. This ensures transparency and allows interested parties to express their views on the appointment.

A Lasting Power of Attorney (LPA) and the Court of Protection both relate to making decisions on behalf of someone who lacks mental capacity, but they arise in different circumstances.

• An LPA is a proactive legal arrangement made by an individual while they are still of sound mental capacity, allowing them to appoint one or more trusted people to manage their financial affairs or make decisions about their health and welfare if they later become unable to do so themselves.
• In contrast, the Court of Protection becomes involved when a person has already lost capacity without having put an LPA in place. In such cases, an application is made to the Court of Protection who will appoint a Deputy to manage the individual’s affairs.

Deputyship is a legal arrangement that allows a designated individual, known as the deputy, to make decisions on behalf of someone who lacks the mental capacity to do so themselves. The Deputy is typically a family member or a close friend, but in some cases, a professional may be appointed.

Who can be a Deputy?

Anyone over 18 can be considered for Deputyship, but preference is typically given to:

• Close family members or friends
• Professional Deputies (solicitors, accountants, etc.)
• Local authority social workers (appointed as a last resort)

Key responsibilities of a deputy:

• Acting in the best interests of the person they are appointed for.
• Making decisions based on the person's wishes and values, whenever possible.
• Keeping accurate records of their decisions and financial transactions.
• Reporting to the Office of the Public Guardian regularly.

Property and Financial Affairs Deputyship:  

This type of Deputyship allows the Deputy to make decisions regarding the person's financial matters, including managing bank accounts, paying bills, and handling property-related issues. The person who has lost capacity may require their home to be sold for purposes such as paying for care costs, and an application to the Court of Protection can be made to sell such property.

Personal Welfare Deputyship:

A personal welfare Deputy is granted authority to make decisions related to the individual's healthcare, living arrangements, and other personal matters. This can be things as simple as a weekly haircut that the person has always had or the diet of food they are eating; for example, have they always been a vegetarian? If so, they should be able to continue doing so, and a Deputy is appointed to ensure the person's general wellbeing is being taken care of.