The role of the Court of Protection & deputies

When an individual lacks the capacity to manage their financial affairs, they may need a Court of Protection lawyer to assist with important financial decisions. A Court of Protection lawyer can help a person to make these decisions, should they lack the ability to do so themselves.

This may be due to learning difficulties, old age, mental health problems or due to the result of sustaining an acquired brain injury following an accident or medical negligence.

The Court of Protection makes decisions relating to the property, finances, health and welfare of people who lack mental capacity. The Court of Protection can delegate some of its authority by appointing a deputy. A Court of Protection lawyer is an expert who can assist you with Court of Protection matters.

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 have Power of Attorney)
• You are concerned about the way someone’s affairs are being managed
• You are a personal injury and clinical negligence lawyer who needs an expert witness.

Our team of highly qualified Court of Protection lawyers, based in Kent, can put safeguards in place to ensure decisions are made in the best interests of a person who lacks capacity to manage their affairs. Thomson Snell & Passmore’s Court of Protection lawyers act with sensitivity and professionalism at all times.

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 health and 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 or attorney’s authority. It can appoint a new deputy, or discharge an existing one if the person regains capacity.

What is the Office of the Public Guardian?

The Office of the Public Guardian (OPG) supports the Public Guardian, which is a role created by the Mental Capacity Act 2005. The OPG’s main function is to supervise deputies (and attorneys appointed under a Lasting or Enduring Power of Attorney) who are making decisions for persons who lack capacity. It therefore has a distinct role from the Court of Protection, which has judges who hear cases, provide authority to deputies, and make decisions.

The duty of the OPG is to protect the interests of those people in England and Wales who lack capacity to manage their own financial affairs, or personal welfare. It has the following key
responsibilities:

• Maintaining a register of deputies and attorneys
• Supervising all deputies appointed by the Court of Protection
• Obtaining and approving annual accounts and reports submitted by deputies
• Arranging visits to deputies and persons who lack capacity
• Registering Enduring and Lasting Powers of Attorney
• Investigating concerns of financial abuse by attorneys and deputies and reporting to the Court of Protection.

What is a deputy?

A deputy is a person or, (for property and financial affairs cases) a trust corporation appointed by the Court of Protection to make decisions on behalf of someone who lacks the capacity to make the decision in question, themselves. The deputy can be a relative of the person concerned, or a professional such as a lawyer.

In matters relating to a person’s finances, a deputy is usually given wide powers to manage the person’s property and day to day financial affairs, and act as his or her agent. Any decisions made, or action taken, by the deputy must be made in the person’s best interests.

Who can be a deputy?

Anyone over the age of 18 can be a deputy, provided the Court of Protection considers them an appropriate person to be appointed. For property and financial affairs cases, our trust corporation, the Thomson Snell & Passmore Trust Corporation, can also act as a professional deputy.

Prospective deputies need to complete a declaration disclosing material facts about their personal history, which the Court will consider when making their decision. Prospective deputies must also give a personal undertaking to the Court confirming that they will apply the principles of the Mental Capacity Act 2005, the Code of Practice, and make other commitments regarding their duties as a deputy.

Where appropriate, two or more deputies can be appointed to act together or individually.

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.

When is a lawyer appointed as a deputy?

Anyone can be appointed as a deputy so long as they are considered by the Court as a suitable person to act in this important role. There are however occasions when the Court, or indeed family members, will prefer the appointment of a lawyer. Examples are where there is a significant damages award to administer or where there is disagreement amongst family members.

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

What are the main duties of a deputy?

The main role of a financial deputy is to manage the property and day to day 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. In practice, a deputy’s main responsibilities will include:

• Paying care costs and other expenses
• Collecting benefits, pensions and other assets
• Managing investments and property
• Completing an annual report showing the funds received and spent on behalf of the person concerned
• Preparing an annual tax return.

What is the difference between a Lasting Power of Attorney (LPA) and a Court of Protection Deputyship?

A Lasting Power of Attorney is made by the person before he or she loses capacity. A deputy is appointed by the Court of Protection after the person loses capacity.

What happens if someone loses capacity but has not made a Lasting Power of Attorney (LPA) in advance?

An application can be made to the Court of Protection for a deputy to be appointed. Deputyship applications may be made by relatives or close friends of the vulnerable person, where the relative or close friend is the proposed deputy. Where there are no friends or family who are able or willing to act, or the circumstances are complex (perhaps a high value estate is involved, or relatives do not see eye to eye), an application can be made for the appointment of a professional deputy, such as a lawyer.

It is possible to appoint both property and affairs deputies and health and welfare deputies. The appointment of a financial deputy tends to be much more common than the appointment of a health and welfare deputy.

Where someone lacks capacity to make decisions about their finances, the only way in which decisions can be made on their behalf, in the absence of them having made an earlier LPA, is by appointing a deputy under a financial deputyship order. This order gives them the correct authority to act on behalf of the other person.

How do I apply to the Court of Protection?

If there is medical evidence to suggest that an individual lacks capacity to make their own decisions and there is no Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA) in place, an application can be made to the Court of Protection for a deputy to be appointed. The application could be made by a family member, friend, professional, or in some cases the local authority.

However, even if there is an EPA or LPA in place, there are situations where it might still be appropriate and in the person’s best interests for a deputy to be appointed instead – such as where there is going to be a damages award.

To make an application, Court of Protection forms will need to be completed and sent to the Court. These forms request information about the individual’s financial circumstances, the extent of the authority sought, and details about the proposed deputy to ensure that they are suitable.

Links to the forms and further guidance can be found online at www.gov.uk/courts-tribunals/court-of-protection.

Alternatively, assistance can be sought from a legal professional to help with the application. In nearly all applications relating to a person’s financial and property affairs, the Court will allow for the fees of the professional to be paid from the funds of the person to whom the application relates.

If there are no firm proposals as to who should take on the role of a deputy, the Court can appoint someone from their panel of professional deputies.

A medical certificate, completed by a doctor or other suitable professional, must also be provided to the Court. There may be a fee to provide this.

As of April 2025 there will be a £421 application fee unless the individual is eligible for a fee exemption or reduction.

Will I have to go to Court?

In the majority of cases, provided there have been no objections to the application, the Court of Protection will usually make a decision based on the papers provided, without the need for a hearing.

If a hearing and attendance at Court is required, this would usually be as a result of someone raising an objection to the proposed deputy, or because of a dispute or query over the evidence on the person’s capacity. Alternatively, the Court may want further information or evidence on the application and in order to gather this information, give directions for the parties to attend in person.

All parties will be notified of the need for a hearing.